Can a Delaware city refuse to release the names and home addresses of its retired employees?

Official title

01-IB17 Re: Freedom of Information Act Complaint Against City of Dover

Plain-English summary

Michael Karia asked the City of Dover for the names and addresses of its retired employees. The City refused, worried that vendors selling products aimed at retirees would use the list to solicit its pensioners directly.

The AG sided with the City, relying heavily on two federal appellate decisions interpreting the federal Freedom of Information Act's privacy exemptions. Those cases found that retirees and workers have a real privacy interest in shielding their home addresses from the flood of solicitation, junk mail, and calls that follows disclosure, and that a names-and-addresses list "would not appreciably further the citizens' right to be informed about what their government is up to," since it reveals nothing about the agency's own operations. The AG distinguished this from information about a current employee's name and salary, which past Delaware AG opinions have found is not protected, because a current employee remains accountable to the public for job performance in a way a retiree is not. The opinion also noted that even current employees have a right to keep their home addresses private, even though their names and pay are subject to disclosure.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Are the home addresses of retired government employees public record in Delaware?

No, according to this opinion. The AG found that disclosing a retiree's name and home address would invade personal privacy without meaningfully informing the public about government operations, so a Delaware public body may lawfully withhold that information under FOIA.

If a public employee's salary is public information, does that mean their home address is public too?

No, based on this opinion. The AG distinguished the two: employee names and salaries are subject to disclosure because the public has a legitimate interest in how tax dollars are spent, but the opinion found that even current employees retain a right to keep their home addresses out of public view.

Why would a court treat "who lives where" information differently from other public records, even when the person works for the government?

According to this opinion, the concern is that a list of names and addresses functions less as information about government activity and more as a target list for solicitors and marketers, and that risk is what tips the balance toward privacy for this kind of narrow, personally identifying detail.

Background and statutory framework

Delaware's FOIA requires public records to be open to inspection by citizens, 29 Del. C. § 10002(a), but exempts "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy," id. § 10002(d)(1), and also excludes records exempt "by ... common law," 29 Del. C. § 10002(d)(6), which Delaware courts have read to include a common-law right of informational privacy, citing Board of Education of Colonial School District v. Colonial Educational Association. Because present or past public employees were involved, the AG treated the personnel file exemption as the more specific fit, while noting the underlying privacy analysis (identify the privacy interest, then balance it against the public interest in disclosure) is the same either way.

The opinion leaned on two federal appellate decisions construing the federal FOIA's personal-privacy exemption: the Third Circuit's decision in Sheet Metal Workers International Association v. United States Department of Veterans Affairs, which found a union's members had a real privacy interest in their addresses that outweighed the union's interest in monitoring prevailing-wage compliance, and the D.C. Circuit's decision in National Association of Retired Federal Employees v. Horner, which found retirees' names and addresses exempt because they would mainly attract solicitors rather than inform the public. Both federal courts applied the U.S. Supreme Court's core-purpose test from United States Department of Justice v. Reporters Committee for Freedom of the Press (does disclosure "contribute significantly to public understanding of the operations or activities of government") and its companion privacy holding in United States Department of Defense v. Federal Labor Relations Authority.

Citations

• 29 Del. C. § 10002(a) (public records open to inspection by citizens)
• Id. § 10002(d)(1) (personnel, medical, or pupil file privacy exemption)
• 29 Del. C. § 10002(d)(6) (records exempted by common law, including informational privacy)
• Board of Education of Colonial School District v. Colonial Educational Association, Del. Ch., 1996 WL 104321 (Feb. 28, 1996) (Delaware common-law right of informational privacy)
• Sheet Metal Workers International Association v. United States Department of Veterans Affairs, 135 F.3d 891 (3rd Cir. 1998) (federal appeals court; workers' privacy interest in names and addresses outweighs union monitoring interest)
• United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 500 (1994) (U.S. Supreme Court; privacy interest in avoiding unsolicited mail and contact)
• United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (U.S. Supreme Court; core FOIA purpose is public understanding of government operations)
• National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989) (federal appeals court; retirees' names and addresses exempt from disclosure)

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/11/19/01-ib17-re-freedom-of-information-act-complaint-against-city-of-dover/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 01-IB17 (Del.A.G.), 2001 WL 1593117

Office of the Attorney General

State of Delaware

Opinion No. 01 – IB17

November 19, 2001

Re: Freedom of Information Act Complaint Against City of Dover

*1 Mr. Michael C. Karia

54 Merion Road

Dover, DE 19904

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."

Relevant Statutes

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.

Legal Analysis

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.

*2 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).

Conclusion

*3 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

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 01-IB17 (Del.A.G.), 2001 WL 1593117