Can a Delaware school district withhold job interview scoring sheets from a FOIA request to protect the applicants' privacy?

Official title

05-IB20 Re: Freedom of Information Act Complaint Against the Capital School District

Plain-English summary

A former driver-education instructor asked the Capital School District for the interview questions and score sheets used to hire his replacement. The district gave him the questions but withheld the panel's scoring sheets, citing the applicants' privacy. He argued FOIA's personnel-file exemption doesn't cover job applicants (only current employees), and that the district had already waived any privacy claim by sharing similar documents with his union during an earlier mediation over a separate grievance.

The AG agreed that the personnel-file exemption doesn't reach job-applicant records, since the AG's office had previously held that "personnel" under FOIA means employees, not applicants. But the opinion found the scoring sheets were still protected, this time under a different exemption for records shielded by common-law privacy. Because FOIA lets a public body meet in executive session to discuss a citizen's qualifications for a job, the AG reasoned that records reflecting those same qualifications, including a job applicant's interview and scoring materials, should get the same protection; otherwise the executive-session privilege would mean little if the underlying paperwork were public anyway. The opinion also rejected the waiver argument: sharing documents with a union during a confidential, mediated grievance process doesn't strip away the underlying privacy protection, since mediation depends on a shared expectation that exchanged material stays confidential.

Currency note

This opinion was issued in 2005. 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

Does Delaware's FOIA personnel-file exemption protect the records of job applicants, not just current employees?

No, according to this opinion. The AG found that FOIA's personnel-file exemption applies to employees, not applicants, so a public body cannot rely on that specific exemption to withhold job-applicant materials.

Can a Delaware school district still withhold job interview scoring sheets even if the personnel-file exemption doesn't apply?

Yes, according to this opinion. The AG found a separate common-law privacy exemption protects interview scoring sheets, reasoning that the exemption should parallel FOIA's authorization for a public body to discuss an applicant's qualifications in executive session.

Does sharing a document with a union during confidential mediation waive a public body's right to withhold it from the public later?

No, according to this opinion. The AG found that limited disclosure to a union in a confidential mediation process does not waive the privacy protection that otherwise shields the document from public disclosure under FOIA.

Background and statutory framework

FOIA exempts from disclosure "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy," 29 Del. C. § 10002(g)(1), and separately exempts "[a]ny records specifically exempted from public disclosure by statute or common law," id. § 10002(g)(6). FOIA also authorizes a public body to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed," id. § 10004(b)(9), and, in a separate provision, "an individual citizen's qualifications to hold a job or pursue training," id. § 10004(b)(1), with executive-session minutes and related records themselves exempt from disclosure under id. § 10004(f).

The AG had previously determined that the personnel-file exemption's reference to "personnel" does not extend to applicants for public employment, leaving job-applicant records without an express statutory shield. To fill that gap, the opinion turned to the common-law right of privacy recognized by Delaware courts, citing the Delaware Court of Chancery's Board of Education of Colonial School District v. Colonial Education Association and The News-Journal Co. v. Billingsley. Reasoning that the statute's executive-session authorization for discussing a citizen's job qualifications would mean little if the same records were public anyway, the AG concluded the common-law privacy exemption covers interview panel materials for job applicants, drawing on the Fourth Circuit's Core v. United States (unsuccessful applicants can be embarrassed or professionally harmed if the search process become public) and the Arizona Supreme Court's Arizona Board of Regents v. Phoenix Newspapers, Inc. (publicity around a job search can scare off the best candidates). The opinion noted the AG had reached the same conclusion in the context of a search for a town manager, a school superintendent, and county counsel in earlier opinions.

On the waiver argument, the AG relied on the Montana Supreme Court's In re Estate of Stukey for the definition of mediation as a confidential process built on the parties' ability to exchange information candidly, reasoning that a limited disclosure to a union representative during that kind of confidential process does not strip away the underlying FOIA exemption.

Citations

• 29 Del. C. § 10004(a) (public records open for inspection and copying, as cited in this opinion)
• 29 Del. C. § 10002(g)(1) (personnel, medical, or pupil file exemption for records that would invade personal privacy)
• 29 Del. C. § 10002(g)(6) (records exempted from disclosure by other statute or common law)
• 29 Del. C. § 10004(b)(9) (executive session for personnel matters involving named individual employees or students)
• 29 Del. C. § 10004(b)(1) (executive session for an individual citizen's qualifications to hold a job or pursue training)
• 29 Del. C. § 10004(f) (executive session minutes and related public records exempt from disclosure)
• Board of Education of Colonial School District v. Colonial Education Association, C.A. No. 14383, 1996 WL 104231 (Del. Ch., Feb. 28, 1996), aff'd, 685 A.2d 361 (1996) (Delaware state court; recognizing a common-law right of privacy)
• The News-Journal Co. v. Billingsley, C.A. No. 5774, 1980 WL 3043 (Del. Ch., Nov. 20, 1980) (Delaware state court; recognizing a common-law right of privacy)
• Core v. United States, 730 F.2d 946, 949 (4th Cir. 1984) (federal appeals court; job applicants have a privacy interest in application materials, at least until hired)
• Arizona Board of Regents v. Phoenix Newspapers, Inc., 806 P.2d 348, 352 (Ariz. 1991) (Arizona state court; publicity around a job search can chill qualified candidates from applying)
• In re Estate of Stukey, 100 P.3d 114, 125 (Mont. 2004) (Montana state court; defining mediation as a confidential process for exchanging information)

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/07/27/05-ib20-re-freedom-of-information-act-complaint-against-the-capital-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 05-IB20 (Del.A.G.), 2005 WL 2334348

Office of the Attorney General

State of Delaware

Opinion No. 05 - IB20

July 27, 2005

RE: Freedom of Information Act Complaint Against the Capital School District

*1 Mr. Robert P. Reeder

131 Hiawatha Lane

Dover, DE 19904

Dear Mr. Reeder:

On May 24, 205, our Office received your letter alleging that the Capital School District ("the School District") violated the public records requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA").

By e-mail dated May 11, 2005, you asked to "review and/or copy all interview questions and score keepers [sic] written responses/scoring grades concerning the interview/hiring process that took place for my replacement in driver education in June/July/August 2004." By letter dated May 13, 2005, the Superintendent responded to your request: "Section 10002(g)(1) [of FOIA] provides that personnel records, the disclosure of which would constitute an invasion of privacy, shall not be deemed public. Accordingly, the interview questions will be provided and are enclosed. The interviewers' assessments of the qualifications and abilities of the applicants will not be provided. The disclosure of such assessments would violate the personal privacy rights of the applicants, and are thus not deemed public records."

You contend that the applicant score sheets are not exempt from disclosure under FOIA as part of a personnel file of an employee of the School District. You also contend that the School District waived any privacy exemption from disclosure under FOIA because it "made portions of the documents I am requesting available to the Capital Education Association during a mediation process which took place earlier this year thus negating any rights to confidentiality if indeed that right existed in the first place."

By letter dated May 26, 2004, we asked the School District to respond to your complaint by June 13, 2005 (taking into account the Memorial Day holiday weekend). We received the School District's response on June 13, 2005. On June 30, 2005, we asked the School District for additional information, which we received that same day. On July 5, 2005, we asked the School District for additional information, which we received on July 7, 2005.

According to the School District, FOIA recognizes that individual applicants for a public job have protected privacy interests "by permitting a public body to call for an executive session closed to the public for the purpose of 'Discussion of an individual citizen's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open. See 29 Del. C. § 10004(b)(1).'" The School District maintains that those same privacy interests should protect records that reflect a job applicant's qualifications.

As for your waiver argument, the School District responds that "[a] limited disclosure of records to a union representing employees in [a mediation] is not a waiver of personal privacy rights protecting confidential documents from public disclosure."

Relevant Statutes

*2 FOIA requires that "[a]ll public records shall be open for inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del. C. § 10004(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(g)(1).

FOIA also exempts from disclosure "[a]ny records specifically exempted from public disclosure by statute or common law." Id. § 10002(g)(6).

FOIA authorizes a public body to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." Id. § 10004(b)(9).

FOIA authorizes a public body to meet in executive session to discuss "an individual citizen's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open." Id. § 10004(b)(1).

Legal Authority

FOIA exempts from the definition of a public record "[a]ny personnel file, the disclosure of which would constitute an invasion of personal privacy." 29 Del. C. § 10002(g)(1). And FOIA authorizes a public body to meet in executive session to discuss "[p]ersonnel matters in which the names, competency and abilities of individual employees … are discussed, unless the employee … requests that such a meeting be open." Id. § 10004(b)(9).

For public employment, FOIA authorizes a public body to meet in executive session to discuss their qualifications, but there is no corresponding provision in the public records section of FOIA specifically addressing job applicant records (like there is for personnel records).

We have previously determined that when FOIA refers to "personnel" it does not mean an applicant for public employment. See Att'y Gen. Op. 03-IB210 (Sept. 3, 2002). The School District therefore cannot rely on FOIA's personnel file exemption to withhold the job applicant score sheets you requested, but must rely on another exemption. 1

FOIA does not apply to documents "exempted from public disclosure by statute or common law." 29 Del. C. § 10002(g)(6). The courts in Delaware have recognized a "common law right of privacy." See Board of Education of Colonial School District v. Colonial Education Association, C.A. No. 14383, 1996 WL 104231, at p.7 (Del. Ch., Feb. 28, 1996) (Allen, C.), aff'd, 685 A.2d 361 (1996); The News-Journal Co. v. Billingsley, C.A. No. 5774, 1980 WL 3043 (Del. Ch., Nov. 20, 1980) (Hartnett, V.C.).

The legal issue raised by your FOIA complaint is whether the common law right of privacy exempts records relating to the job qualifications of applicants for public employment from disclosure. We believe that it does because the exemptions for public records under FOIA should parallel the statute's authorization for a public body to meet in executive session to discuss the applicants' job qualifications. Our conclusion is supported by Section 10004(f) of FOIA, which exempts from public disclosure minutes of executive session "and any public records pertaining to executive sessions." 2

*3 We have previously determined that a town council could meet in executive session to discuss the candidates for town manager. "For sound public policy reasons, job applicants have a right of privacy to information disclosed during the application process, at least until they are hired. '[D]isclosure may embarrass or harm applicants who failed to get a job. Their present employers, co-workers, and prospective employers, should they seek new work, may learn that other people were deemed better qualified for a competitive appointment.'" Att'y Gen. Op. 99-IB03 (Apr. 28, 1999) (quoting Core v. United States, 730 F.2d 946, 949 (4th Cir. 1984)). See also Arizona Board of Regents v. Phoenix Newspapers, Inc., 806 P.2d 348, 352 (Ariz. 1991) (en banc) (publicity attendant to job search may result "in lesser qualified" applicants and "chill the attraction of the best possible candidates for the position").

We also have previously determined that a school board could lawfully meet in executive session to discuss the applicants for the job of school superintendent. See Att'y Gen. Op. 02-IB17 (Aug. 6, 2002) ("interviews an discussion of the applicant's job qualifications" are "appropriate subjects for executive session").

Most recently, we determined that a county council could lawfully meet in executive session to interview the two finalists for the position of counsel to the council and then discuss their comparative qualifications. See Att'y Gen. Op. 05-IB12 (May 9, 2005). We found that the two final applicants had a reasonable expectation of privacy "until such time as the Council voted to hire one of them and extend an offer of public employment."

After receiving applications for a new driver education instructor, the School District's Head of the Human Resources Office appointed a screening/selection panel to review the applications and interview the applicants who met the screening criteria. For the interviews, the panel used a uniform question list about the applicant's job qualifications. 3 Under the School District's Hiring Policy, "The purpose of the questioning should determine if the applicant meets the selection criteria and how well the applicant could perform the duties of the job."

Under the Hiring Policy, after each interview panel members recorded their responses "on the selection criteria score sheet …. Each panel member individually ranks or scores applicants. These rankings or scores shall then be compared or totaled and the top applicants agreed upon by the panel in order of merit."

You asked the School District for two types of information: the questions used to interview the applicants for driver education instructor; and the interview panel score sheets for each applicant. The School District provided you with the interview questions under cover of letter dated May 13, 2005, but withheld the score sheets to protect "the personal privacy rights of the applicants."

*4 We do not agree with the School District that Section 10002(g)(1) of FOIA (personnel record exemption) applies to the score sheets, but we believe that this information is protected under another exemption, Section 10002(g)(6) (common law informational privacy).

Although FOIA does not have an express exemption for documents relating to the job applicant process, the statute authorizes a public body to meet in executive session to discuss "an individual citizen's qualifications to hold a job." 29 Del. C. § 10004(b)(1). This exemption for executive session would have little if any practical meaning if the job application packets reviewed by the members of the public body, and their notes or scoring cards, were public records under FOIA.

We do not believe that the School District waived any personal privacy interests when it provided information regarding job applicant qualifications to the Capital Education Association in connection with a grievance under the collective bargaining agreement. The first step in the grievance process was mediation with a federal mediator. Mediation is "a private, confidential informal dispute resolution process in which an impartial and neutral third person, the mediator, assists disputing parties to resolve their differences …. A mediator may encourage and assist the parties to reach their own mutually acceptable settlement by facilitating and exchange of information between the parties, helping to clarify issues and interests, enduring that relevant information is brought forth, and assisting the parties to voluntarily resolve their dispute." In re Estate of Stukey, 100 P.3d 114, 125 (Mont. 2004).

For mediation to work, the parties must be able to exchange documents and information with the assurance of confidentiality. We do not believe that documents which are exempt from disclosure under FOIA lose their exemption when a public body makes them available to a public employee union as part of a confidential mediation process required by the collective bargaining agreement.

Conclusion

For the foregoing reasons, we determine that the School District did not violate the public records requirements of FOIA by denying you access to the scoring sheets of interview panel members compiled during the applicant selection process for a new driver education instructor. We believe that information is exempt from disclosure under FOIA to protect individual privacy for the same reasons that the statute expressly authorizes a public body to meet in private to discuss the an individual's qualifications for public employment.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin

State Solicitor

Footnotes

1
FOIA's personnel exemption might apply if the job application and related materials for the person hired are then placed in that employee's personnel file in the School District's Human Resources Office. The record indicates, however, that all of the job application materials are placed in a separate file for twelve months at which time they are discarded.

2
In earlier opinions, we have determined that FOIA's exceptions to meet in executive session to discuss "job applicant qualifications" and "personnel" do not apply to independent contractors. See Att'y Gen. Op. 05-IB02 (Jan. 12, 2005) (city solicitor); Att'y Gen. Op. 05-IB14 (June 8, 2005) (lobbyist). Counsel for the School District has confirmed that student driving instructors are public employees of the School District.

3
For example, Question 1 asked: "Please tell us about your qualifications for this position?" Question 7 asked: "Describe your strengths and weaknesses as a driver's education instructor?"

Del. Op. Atty. Gen. 05-IB20 (Del.A.G.), 2005 WL 2334348