Civil Division-Kent County
Mr. Michael C. Karia
54 Merion Road
Dover, DE 19904
Re: Freedom of Information Act Complaint Against City of Dover
Dear Mr. Karia:
By letter dated September 29, 2001 (received by our Office on October 9, 2001), you alleged that the City of Dover ("the City") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"). Specifically, you allege that the City did not provide you with the names and addresses of retired City employees.
By letter dated October 10, 2001, we asked for the City's response, which we received on October 29, 2001. According to the City, the names and addresses of retired employees are not "public records" under FOIA because their disclosure would invade personal privacy. "[W]e are fearful that any number of potential vendors of any commodity appealing to retired persons would demand copies of the list because they would have immediate access to the names and addresses of all of our pensioners to whom they could write or call, trying to sell their products or services."
FOIA requires that "[a]ll public records shall be open to inspection and copying by a citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del. C. § 10002(a). FOIA exempts from disclosure "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." Id. § 10002(d)(1).
FOIA also does not apply to records "exempted from disclosure by . . . common law." 29 Del. C. § 10002(d)(6). The courts in Delaware have recognized a common law right of informational privacy, which guards against disclosure by the government of personal information about citizens. See Board of Education of Colonial School District v. Colonial Educational Association, Del. Ch., 1996 WL 104321 (Feb. 28, 1996) (Allen, C.). This FOIA exemption comes into play if the citizens are not present or past public employees. See Att'y Gen. Op. 96-IB33 (Dec. 11, 1996) (names and addresses of business licensees).
When present or past public employees are involved, we think the personnel file exemption is the more specific, and more appropriate, exemption for discussion. The legal analysis under any privacy exemption, however, remains the same. First, we must identify the privacy interests involved, and then balance them against the public interest in disclosing information to hold government accountable.
In Sheet Metal Workers International Association v. United States Department of Veterans Affairs, 135 F.3d 891 (3rd Cir.1998), the union made a FOIA request for the names and addresses of all laborers and mechanics working on federally funded construction projects. The Third Circuit held that the union members had a significant privacy interest in their names and addresses to avoid "'the influx of union related mail, and, perhaps, union related telephone calls or visits that would follow disclosure.'" 135 F.3d at 900 (quoting United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 500 (1994)). "'Moreover, when we consider that other parties, such as commercial advertisers and solicitors, must have the same access under FOIA as the unions to the employee address lists sought in this case it is clear that the individual privacy interest that would be protected by nondisclosure is far from insignificant.'" Id.
The union argued it needed the information to monitor compliance with the federal prevailing wage laws. Balanced against the substantial privacy interests, however, the Third Circuit did not find a compelling public interest in disclosure. "[T]he Supreme Court has refined and reformulated the applicable standard for measuring the 'core purpose' of the Freedom of Information Act, namely contributing significantly to public understanding of the operations or activities of government." 135 F.3d at 903 (citing United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)). "But even assuming 'monitoring' government operations, to some degree, falls within the scope of public interest enunciated in Reporters Committee," the names and addresses of the individual workers "would not enhance agency enforcement of the prevailing wage laws." 135 F.3d at 903.
In National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989), a trade association made a FOIA request for the names and addresses of retired or disabled federal employees. The D.C. Circuit held that information was exempt from disclosure. "Here, there is a substantial probability that the disclosure will lead to the threatened invasion [of privacy]: one need not overlook an opportunity to get cheaply from the Government what otherwise comes dearly, a list of qualified prospects for all the special goods, services, and causes likely to appeal to financially secure retirees." 879 F.2d at 878. The court rejected the trade association's argument that there was a public interest in disclosure: to inform the public where its money was going. "While we can see how the percentage of the federal budget devoted to annuities, the amount of the benefit of an average annuitant receives, or other aggregate data might be of public interest," disclosure of names and addresses "say nothing of significance about 'what the Government is up to.'" Id. at 879 (quoting Reporters Committee, 489 U.S. at 771).
We find these federal authorities persuasive, and determine that Delaware's FOIA protects the names and addresses of retired public employees because disclosure of that information would invade their privacy. Even current employees, who have a lesser expectation of privacy, have a right not to have their home addresses made public. We distinguish earlier opinions dealing with the names and salaries of public employees, which are not protected under FOIA. See Att'y Gen. Op. 77-27 (Aug, 4, 1977); Att'y Gen. Op. I-78-37 (Mar. 10, 1978); Att'y Gen. Op. 96-IB13 (May 6, 1996). A current government employee has a lesser expectation of privacy than a retiree, and is accountable to the public for his or her performance on the job, unlike a retiree. Disclosing the names and addresses of retirees "'would not appreciably further the citizens' right to be informed about what their government is up to. Indeed, such disclosure would reveal little or nothing about the employing agencies or their activities.'" Sheet Metal Workers, 135 F.3d at 903 (quoting Department of Defense, 510 U.S. at 497).
For the foregoing reasons, we determine that the City did not violate
the public records requirements of FOIA and lawfully withheld the names
and addresses of retired City employees.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady, Attorney General
Nicholas H. Rodriguez, Esquire
Phillip G. Johnson, Opinion Coordinator
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