Can Delaware DOT redact the names of people who report problems through its online road-condition complaint form?

Official title

17-IB60 11/21/2017 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning the Delaware Department of Transportation

Plain-English summary

Journalist Craig O'Donnell asked the Delaware Department of Transportation (DelDOT) for copies of emails received through its "Report a Road Condition" web form over a three-day period. DelDOT produced the emails but redacted the names and addresses of the people who submitted them, citing both the investigatory-files exemption and the common-law right of privacy. O'Donnell pushed back, noting the web form covers 19 different categories, many (like reporting a dead animal or asking about tourist information) having nothing to do with any plausible civil investigation, and that DelDOT logs thousands of these reports a year, far more than it could plausibly investigate.

DelDOT's position, which the AG accepted, was that it treats every submission through the portal as a potential civil investigatory file regardless of category, because DelDOT cannot reliably tell in advance which reports citizens have mis-categorized, and because revealing complainants' identities would likely have a chilling effect on citizen reporting that often gives DelDOT its first notice of a problem. DelDOT also pointed to a Delaware statute giving it "absolute care, management, and control" over public roads, and to an earlier AG opinion applying the same exemption to a single mailbox complaint. Satisfied the redactions were properly grounded in the investigatory-files exemption, the AG did not need to separately decide whether the common-law privacy exemption would also have applied.

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 find out who reported a road problem to Delaware DOT through its online complaint form?

Generally no, according to this opinion. The AG accepted DelDOT's practice of redacting the names and addresses of everyone who submits a Report a Road Condition form, treating every submission as a potential investigatory file regardless of subject matter.

Does it matter that most road complaints (like a dead animal or a pothole) obviously aren't going to trigger an investigation?

Not under this opinion. The AG accepted DelDOT's argument that it can't reliably screen complaints category by category, since citizens don't always file under the correct heading, and applied the exemption to the entire complaint portal rather than only to complaints that plausibly involve enforcement action.

Why does protecting complainants' identities matter to DelDOT?

The opinion credited DelDOT's argument that if citizens knew their name and address could later be disclosed through a FOIA request, it would discourage them from reporting road hazards and problems in the first place, undermining a system that gives DelDOT its earliest notice of issues.

Did the AG decide whether the common-law right to privacy also protects this kind of information?

No. Having found the investigatory-files exemption sufficient to justify the redactions, the AG did not need to reach DelDOT's separate common-law privacy argument.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, exempts "investigatory files compiled for civil or criminal law-enforcement purposes" from its "public record" definition. 29 Del. C. § 10002(l)(3). A separate exemption covers records exempted by other statute or common law. 29 Del. C. §10002(l)(6). DelDOT has "absolute care, management, and control" of public roads and their rights-of-way under 17 Del. C. § 131(a), which DelDOT argued supports treating citizen complaints about road conditions as part of its civil enforcement function. This opinion extended the AG's earlier reasoning in a single-complaint case (regarding an individual mailbox complaint) to an entire complaint intake system, applying the investigatory-files exemption across the board rather than complaint-by-complaint.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. §10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(l)(3) (investigatory files exemption)
• 29 Del. C. §10002(l)(6) (records exempted by other statute or common law)
• 17 Del. C. § 131(a) (DelDOT's absolute care, management, and control of public roads)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/12/04/17-ib60-11212017-foia-opinion-letter-mr-craig-odonnell-re-foia-complaint-concerning-delaware-department-transportation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/12/Attorney-General-Opinion-No.-17-IB60.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB60

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB60

November 21, 2017

VIA EMAIL

Mr. Craig O'Donnell

[email protected]

Re: November 1, 2017 FOIA Correspondence Concerning the Delaware Department of Transportation

Dear Mr. O'Donnell:

I write in response to your correspondence, received on November 1, 2017, alleging that the Delaware Department of Transportation ("DelDOT") violated the public records provisions of Delaware's Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA"). 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"). Specifically, you allege that DelDOT violated FOIA by redacting certain information from records produced in response to your October 16, 2017 request for records. We invited DelDOT to submit a response to your Petition and received DelDOT's response ("Response Letter") on November 6, 2017. For the reasons set forth below, it is my determination that DelDOT did not violate FOIA as alleged.

FACTS

On October 16, 2017, you requested electronic copies of all email received by the email address [email protected] for the period October 10-12 originating with the Road Condition Report web form. On October 24, 2017, a DelDOT representative provided responsive records, but indicated that they had been redacted pursuant to 29 Del. C. § 10002(l)(3) and/or 29 Del. C. §10002(l)(6) "based on the right of privacy of the individuals submitted the complaints/requests to DelDOT and the investigative nature of the complaints/requests." That same day, you responded by citing to Del. Op. Att'y Gen. 10-IB09, wherein this Office determined that the names and addresses of individuals who made public comments regarding a DelDOT study were public. On October 30, 2017, another DelDOT representative responded that it did not believe the opinion was relevant. He stated that DelDOT considers each request submitted regarding road conditions as a potential civil investigation and cited to Del. Op. Att'y Gen. 99-IB14 for the proposition that the names of potential witnesses in civil investigations are exempt from FOIA. He stated that releasing their names "could potentially have a chilling effect on enforcement."

DISCUSSION

In your Petition, you note that the web portal contains at least 19 categories under the heading "Road Condition Report."[1] You state that you "find it hard to imagine a civil investigation spurred by a complaint about Construction Project, Dead Animal, Travel/Tourist Information, Streetlight" and state that "no category seems like a candidate for investigatory action."[2] You also state that DelDOT has revealed that it received more than 4,500 complaints over a six-month period, or 9,000 per year, and express doubt that DelDOT conducts that many investigations.[3] You state that DelDOT has failed to identify any instance in which Road Condition Reports have been used in a civil investigation.[4] While you express doubt regarding whether DelDOT has the authority to conduct a civil investigation, you argue that complainant information may be redacted only for those records relating to a specific investigation.[5]

In its Response Letter, DelDOT acknowledges that the common law right of privacy is not absolute, but argues that disclosure of the complainants' information would not contribute significantly to public understanding of the operations or activities of the government.[6] DelDOT also argues that "if residents knew their identifying information could be disclosed pursuant to FOIA, participation in the process would be discouraged."[7] DelDOT notes that the Report a Road Condition reports are not submitted in a public forum, cannot be submitted without the name, address, and contact lines filled out, and do not contain "any notice to citizens that at the time they submit their issue that their name and address could be subject to disclosure pursuant to FOIA."[8]

DelDOT next argues that the redacted information was properly withheld pursuant to 29 Del. C. §10002(l)(3). DelDOT notes that, per 17 Del. C. § 131(a), all public roads, including the right-of-way, are under "the absolute care, management, and control of the Department [of Transportation]." DelDOT maintains that Section 10002(l)(3) allows DelDOT to maintain the confidentiality of its files, including complainants' identifying information, upon receipt of a complaint.[9] DelDOT cites to Del. Op. Att'y Gen. 17-IB47 (Sept. 22, 2017), wherein this Office determined that the name and address of an individual who submitted a complaint regarding a non-conforming mailbox to DelDOT is exempted pursuant to Section 10002(l)(3).[10] DelDOT acknowledges that not every complaint submitted to DelDOT results in a civil investigation, but argues that "[i]t is not a determination that can be made by determining which category of the Report a Road Condition form may result in civil investigations, as many citizens do not submit items under the proper category."[11] DelDOT maintains that the civil investigative file exemption should apply to every complaint submitted through the Report a Road Condition portal, regardless of whether the complaint results in a civil investigation.[12] DelDOT also argues that revealing complaining citizens' names and addresses would have a chilling effect on citizen reporting, which is often DelDOT's first notice of potential violations. I agree. Under the circumstances, I am satisfied that the information was properly redacted pursuant to 29 Del. C. §10002(l)(3).[13]

CONCLUSION

For the reasons set forth above, it is my determination that DelDOT did not violate FOIA as alleged.

Very truly yours,

LaKresha S. Roberts

Chief Deputy Attorney General

cc:

Michelle E. Whalen, Deputy Attorney General (via email)

Annie Cordo, Deputy Attorney General (via email)

[1] Petition at 2.

[2] Id.

[3] Id. In its Response Letter, DelDOT clarified that this estimate was incorrect, as it included the original submission and internal emails related to that submission. Response Letter at 4. DelDOT provided a revised estimate of 360 issues reported in a six-month timeframe, or approximately 720 per year. Id.

[4] Petition at 2.

[5] Id.

[6] Response Letter at 2.

[7] Id.

[8] Id. at 3.

[9] Id. at 3-4.

[10] Id. at 4.

[11] Id.

[12] Id.

[13] This determination does not address whether or to what extent DelDOT would have been permitted to withhold the records in their entirety, as those facts are not before me. Having determined that DelDOT was permitted to redact the information pursuant to 29 Del. C. § 10002(l)(3), I need not determine whether the information would also be exempted pursuant to 29 Del. C. § 10002(l)(6) and the common law right of privacy.