Can I use Delaware FOIA to get a city employee's personnel file, complaints, and disciplinary records?

Official title

19-IB39 7/9/2019 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Peter Kostyshyn submitted a FOIA request to the City of Wilmington on May 13, 2019 for records about a specific City employee, including the employee's personnel file and any complaints or disciplinary actions. The City responded on May 23, 2019, stating that personnel files are exempt from disclosure under 29 Del. C. § 10002(l)(1) and that it had no other responsive records.

Kostyshyn petitioned, alleging the City failed to provide responsive records and asking the AG to "investigate and compel discovery." The AG found no violation. Section 10002(l)(1) removes from the definition of "public record" any personnel, medical, or pupil file whose disclosure would be an invasion of personal privacy. The AG accepted the City's representation that the responsive records were contained in the employee's personnel file (and so were exempt) and that no other responsive records existed. The request to investigate and compel discovery fell outside the office's authority, which under 29 Del. C. § 10005(e) is limited to determining whether a FOIA violation occurred or is about to occur.

Currency note

This opinion was issued in 2019. 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 government personnel files public in Delaware?

Not under FOIA's general access rule. Section 10002(l)(1) excludes from the definition of "public record" any "personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy." The opinion applied that exemption to the employee's file here.

Do complaints and disciplinary records get the same treatment?

In this case the City represented that the responsive complaint and discipline records were part of the employee's personnel file, and the AG accepted that. The opinion did not separately analyze whether such records would always be personnel-file material.

What if I think there are responsive records outside the personnel file?

The City represented it had no other responsive records, and the AG accepted that representation. A requester who has concrete evidence to the contrary can bring a civil action under 29 Del. C. § 10005 in Superior Court.

Can the AG investigate or compel discovery on my behalf?

No. The opinion states the office's authority is limited to determining whether a FOIA violation has occurred or is about to occur under § 10005(e); it does not include investigative or discovery powers.

Background and statutory framework

This was one of several FOIA petitions Peter Kostyshyn filed against the City of Wilmington in mid-2019. This one turned on the personnel-file exemption.

29 Del. C. § 10002(l)(1) excludes personnel, medical, and pupil files from the definition of "public record" where disclosure "would constitute an invasion of personal privacy." It is one of the categorical exemptions in FOIA's definitions section, distinct from the discretionary exemptions elsewhere in § 10002(l).

29 Del. C. § 10005(e) gives the AG authority to determine whether a violation "has occurred or is about to occur." The opinion describes that authority as the boundary of the office's role in a petition; it does not extend to independent investigation or discovery.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10002(l)(1) (personnel, medical or pupil file exemption)
• 29 Del. C. § 10005 (FOIA enforcement)
• 29 Del. C. § 10005(e) (petition determinations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/07/09/19-ib39-7-9-2019-foia-opinion-letter-to-mr-peter-kostyshyn-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/07/Attorney-General-Opinion-No.-19-IB39.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB39
July 9, 2019

VIA US MAIL
Mr. Peter Kostyshyn
Wilmington, DE 19802

RE: FOIA Petition Regarding the City of Wilmington

Dear Mr. Kostyshyn:

We write in response to your correspondence alleging that the City of Wilmington (the "City") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your request for records. We 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. For the reasons set forth below, it is our determination that the City has not violated FOIA as alleged.

BACKGROUND

You state in your Petition that you submitted a FOIA request to the City on May 13, 2019. The City responded on May 23, 2019. In your Petition, you allege that the City failed to provide records responsive to your request.

Your May 13, 2019 FOIA request sought records related to a specific City employee, including the employee's personnel file, and any complaints or disciplinary actions. The City responded by stating that personnel files are exempt from disclosure under 29 Del. C. § 10002(l)(1), and that it had no other responsive records.

DISCUSSION

Pursuant to 29 Del. C. § 10002(l)(1), the definition of "public record" does not include "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy." We accept the City's representation that the remaining responsive records, if any, are contained within the employee's personnel file and are therefore exempt. We also accept the City's representation that it has no other responsive records.

Your Petition also requests that this Office "investigate and compel discovery." This Office's authority under FOIA is limited to determining whether a violation of FOIA has occurred or is about to occur. 29 Del. C. § 10005(e).

CONCLUSION

For the reasons set forth above, it is our determination that the City has not violated FOIA as alleged.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General