Can Delaware deny you your own pre-employment background check records under FOIA?

Official title

17-IB53 10/10/2017 FOIA Opinion Letter to Mr. Vincenzo Macrino re: FOIA Complaint Concerning The Delaware Department of Correction

Plain-English summary

Vincenzo Macrino, a rejected job applicant, asked the Delaware Department of Correction (DOC) for his own pre-employment background investigation file, including interview notes and statements from his former employers, and the reasons he was not hired. DOC denied the request as an exempt "investigatory file."

The AG agreed. DOC is required by 11 Del. C. § 6506(b) to obtain a job applicant's criminal history before making a hiring decision, and the AG found that materials from this legally mandated background investigation fit FOIA's exemption for "investigatory files compiled for civil or criminal law-enforcement purposes." Having found that exemption applied, the AG did not need to reach DOC's alternative arguments involving the personal-privacy and criminal-record exemptions. The opinion noted that Macrino's right to any of this information, if he has one, comes from some other law, not FOIA.

Currency note

This opinion was issued in 2017. 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

Can I use Delaware FOIA to get a copy of my own job application background check?

Not necessarily. This opinion treated a state agency's legally required pre-employment background investigation as an exempt "investigatory file" under FOIA, even though the requester was asking about himself and wanted to know why he wasn't hired.

Does the investigatory-files exemption only cover criminal investigations?

No. The opinion applied it to a civil background investigation the Department of Correction was statutorily required to conduct on job applicants, not just to criminal law-enforcement files, and noted that the statute's list of exempt categories is illustrative rather than an exhaustive closed list.

If FOIA doesn't apply, is there any other way to get this kind of information?

This opinion did not say. It stated only that to the extent the requester might be entitled to information DOC gathered during its investigation, that entitlement would have to come from a source of law other than FOIA.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005 when a public body denies a records request. FOIA exempts "investigatory files compiled for civil or criminal law-enforcement purposes" (29 Del. C. § 10002(1)(3)), records exempted by other statute or common law (§ 10002(1)(6)), criminal files whose disclosure would invade personal privacy (§ 10002(1)(4)), and personnel, medical, or pupil files implicating personal privacy (§ 10002(1)(1)). Separately, 11 Del. C. § 6506(b) requires DOC to obtain a job applicant's full criminal history before making an employment decision, which the AG found brings the resulting investigatory materials within FOIA's civil investigatory-files exemption, following Delaware Superior Court precedent holding that FOIA's list of exempt categories is illustrative rather than exhaustive.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(1) (definition of "public record")
• 29 Del. C. § 10002(1)(3) (investigatory files exemption)
• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law)
• 29 Del. C. § 10002(1)(4) (criminal files/personal privacy exemption)
• 29 Del. C. § 10002(1)(1) (personnel/medical/pupil file privacy exemption)
• 11 Del. C. § 6506(b) (DOC required to obtain applicant's criminal history)
• 11 Del. C. § 8513(d) (restricting dissemination of criminal history information)
• City of Dover v. Int'l Tel. and Tel. Corp., 514 A.2d 1086 (Del. Super. 1986) (FOIA's exemption list is illustrative, not exhaustive)
• Gage v. City of Wilmington, 293 A.2d 555 (Del. 1972) (cited within City of Dover on statutory listing language)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/10/11/3578/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/10/Attorney-General-Opinion-No-17-IB53.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB53
October 10, 2017

VIA U.S. MAIL & EMAIL

Vincenzo J. Macrino

5432 Lake Road

Newfield, NJ 08344
[email protected]

Re: September 21, 2017 FOIA Correspondence Regarding the Delaware Department
of Correction

Dear Mr. Macrino:

I write in response to your correspondence, received on September 21, 2017, alleging that
the Delaware Department of Correction ("DOC") violated the public records provisions of
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you
allege that DOC violated FOIA by denying your September 15, 2017 request for records.[1] I treat
your correspondence as a petition for a determination pursuant to 29 Del. C. §10005 regarding
whether a violation of FOIA has occurred or is about to occur ("Petition").[2] For the reasons set
forth below, it is my determination that DOC did not violate FOIA.

On or about September 12, 2017, you sent the following FOIA request to DOC via U.S.
Mail, which was received by DOC on September 15, 2017: "Under the Delaware Freedom of
Information Act § 100001 et seq., I am requesting an opportunity to obtain copies of my pre-
employment background investigation including but not limited to interviews and statements from
my previous employers and employees or representatives of my previous employees [sic]
specifically the Sea Isle City Police Department, and PSEG Nuclear LLC and GAS, the report of
investigating officer including the reason or reasons I was not selected for employment with the
Delaware State Department of Corrections [sic]." On September 19, 2017, DOC denied your
request on the basis that the records "investigatory files" and were therefore exempted from public
disclosure pursuant to 29 Del. C. § 10002(1)(3).

In its September 27, 2017 response to your Petition, the DOC notes that 11 Del. C. §
6506(b) requires it to obtain an applicant's entire criminal history prior to making an employment
decision on any applicant. DOC maintains that "[m]aterials related to the investigation of an
applicant for employment that the Delaware Code requires the DOC to conduct, satisfy the plain
meaning of 'investigatory files' that 29 Del. C. § 10002(1)(3) excludes from FOIA's definition of
public records."

Delaware's FOIA defines "public record" is as "information of any kind, owned, made,
used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any
public body, relating in any way to public business, or in any way of public interest, or in any way
related to public purposes . . . ."[3] However, among the information that FOIA exempts from the
definition of "public records" are "[i]nvestigatory files compiled for civil or criminal law-
enforcement purposes including pending investigative files, pretrial and presentence
investigations and child custody and adoption files where there is no criminal complaint at issue."[4]
FOIA also exempts "[a]ny records specifically exempted from public disclosure by statute or
common law" and "[c]riminal files and criminal records, the disclosure of which would constitute
an invasion of personal privacy."[5] Finally, FOIA exempts "[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."[6]

Here, the DOC is statutorily required to obtain the criminal history record of any applicant
for employment with the DOC.[7] Under the circumstances, it is my determination that the requested
information, to the extent it exists, constitutes an investigatory file compiled for civil law-
enforcement purposes.[8] As such, it is my determination that the DOC did not violate FOIA by
denying your request.[9] Indeed, to the extent you are entitled to any or all of the information that
DOC obtained during the course of its investigation, your right of access thereto is not governed
by FOIA.

Very truly yours,

LaKresha S. Roberts
Chief Deputy Attorney General

cc: Gregory E. Smith, Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)

[1] The record demonstrates that your request, dated September 12, 2017, was sent via U.S.
Mail and received by the DOC on September 15, 2017.

[2] While I have decided to issue a determination here as a courtesy, I feel compelled to note
that you appear to lack standing to avail yourself to the enforcement provisions contained in 29
Del. C. § 10005, including the petition process set forth in Section 10005(e).

[3] 29 Del. C. § 10002(1).

[4] 29 Del. C. § 10002(1)(3) (emphasis added).

[5] 29 Del. C. § 10002(1)(6).

[6] 29 Del. C. § 10002(1)(1). While this provision allows an individual to obtain his or her
own criminal record upon proof of identity, Delaware law prohibits the dissemination of such
information by any person or agency other than the State Bureau of Identification. See 11 Del. C.
§ 8513(d). Similarly, persons and agencies with access to the Delaware Criminal Justice
Information System ("DELJIS") must comply with Chapters 85 and 86 of Title 11 of the Delaware
Code, and subchapter III, subpar K of Chapter 5 of Title 11. Indeed, any employee, including
employees of the DOC, who knowingly or recklessly disseminates DELJIS information may be
punished according to Chapter 42 of Title 11 of the Delaware Code.

[7] See 11 Del. C. § 6506(b).

[8] I do not interpret the itemized list of exempted items in Section 10002(1)(3) to be
exhaustive. See City of Dover v. Int'l Tel. and Tel. Corp., 514 A.2d 1086, 1089-90 (Del. Super.
1986) ("The listing in the statute [following the words 'shall include'] is exemplary, not
exhaustive.") (citing Gage v. City of Wilmington, 293 A.2d 555 (Del. 1972)).

[9] Having determined that the requested information is exempted from FOIA pursuant to 29
Del. C. § 10002(1)(3), I need not determine whether, or to what extent, the information would also
be exempted pursuant to 29 Del. C. § 10002(1)(1), (4), or (6).