Can a Delaware citizen force a county to reveal who anonymously forwarded a public official's email to a staffer?

Official title

08-IB11: RE: Freedom of Information Act Complaint Against New Castle County

Plain-English summary

A New Castle County councilman filed a FOIA complaint after the County refused to identify a private citizen who had forwarded a council president's public email about proposed development-code legislation to the County's Chief of Staff. The County didn't dispute that the original email was a public record, but withheld anything revealing who forwarded it, invoking a common law right to protect informants. The AG agreed, applying a balancing test: weigh the public's interest in disclosure against the government's interest in protecting a source's confidentiality. The councilman explained he wanted the informant's identity to figure out whom to lobby for or against the legislation, but the AG found that reason didn't serve FOIA's actual purpose, holding government accountable to citizens, not the reverse, so there was nothing on the disclosure side of the scale to weigh against the County's real interest in not discouraging people from sharing information with officials.

Currency note

This opinion was issued in 2008. 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

Q: Can a Delaware public body withhold the identity of someone who privately shared information with a public official?
A: Yes, according to this opinion, under a common law informant's privilege, when the public's interest in learning the identity doesn't outweigh the government's interest in protecting its sources.

Q: Does a requester's reason for wanting a record matter under Delaware's FOIA?
A: Generally the purpose of a request doesn't affect whether a record is public, but this opinion holds that when a public body claims the informant's privilege, the requester's actual reason for wanting the identity becomes relevant to the balancing test.

Q: Why would the government want to protect someone who forwarded an already-public email?
A: According to this opinion, revealing who forwards information to officials risks discouraging citizens from sharing information with government in the future, an interest the AG found outweighed the requester's stated political reasons here.

Background and statutory framework

The complaint concerned New Castle County's refusal to disclose who forwarded a June 11, 2008 email from the Council President to the County Chief of Staff. Applying FOIA's declaration of policy at 29 Del. C. § 10001, the public records access requirement at § 10003, the definition of "public record" at § 10002(g), the common law exemption at § 10002(g)(6), and the complaint procedure at § 10005(e), and applying the balancing test for the common law informant's privilege recognized in Delaware (Bd. of Educ. of Colonial Sch. Dist. v. Colonial Educ. Ass'n.) and federal case law requiring a clear need to override the privilege (Elnashar v. Speedway SuperAmerica, LLC), plus the recognized chilling effect of exposing sources (News-Journal Co. v. Billingsley), the AG found the County justified in withholding the informant's identity.

Citations and references

Statutes:

• 29 Del. C. § 10001, FOIA's declaration of policy favoring citizen access and government accountability
• 29 Del. C. § 10003, public records must be made available for inspection and copying upon request
• 29 Del. C. § 10002(g), defines "public record" broadly to include information relating to public business
• 29 Del. C. § 10002(g)(6), exempts records specifically exempted from disclosure by statute or common law
• 29 Del. C. § 10005(e), the DOJ's procedure for determining a citizen's FOIA complaint

Cases:

• Bd. of Educ. of Colonial Sch. Dist. v. Colonial Educ. Ass'n., 1996 WL 104231 (Del. Ch.), a legitimate privacy interest in an informant's identity must be weighed against the public's need for the information
• Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046 (8th Cir. 2007), a party must show a clear need for an informant's identity to override the government's confidentiality interest
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch.), disclosing investigatory sources would chill citizens from bringing information to public bodies

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/09/09/08-ib11-re-freedom-of-information-act-complaint-against-new-castle-county/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 08-IB11 (Del.A.G.), 2008 WL 4358318 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 08-IB11

September 9, 2008

RE: Freedom of Information Act Complaint Against New Castle County

*1 George Smiley

Councilman

800 North French Street, 8 th Floor

Wilmington, DE 19801

Dear Councilman Smiley:

On August 19, 2008, the Delaware Department of Justice (DDOJ) received your complaint alleging that New Castle County violated the Freedom of Information Act (FOIA), 29 Del. C. § 10001 et seq. , by refusing to provide you with records that relate to a June 11, 2008 email from New Castle County Council President Paul Clark. On the same day, we sent your complaint to New Castle County, and we received their response on August 29, 2008. This is the DDOJ’s determination regarding your complaint, pursuant to 29 Del. C. § 10005(e) .

Statement of the Facts

On June 11, 2008, New Castle County Council President Paul Clark (“Clark”) sent an email to aproximately two dozen members of the public, asking them to review and comment on proposed legislation concerning the County Unified Development Code. A private citizen forwarded a copy of that email to the New Castle County Chief of Staff. While it is undisputed that the Clark email is a public record, New Castle County has refused to provide you with records revealing the identity of the individual who forwarded the Clark email to the Chief of Staff.

Relevant Statutes

29 Del. C. § 10001 states that, “[i]t is vital in a democratic society … that citizens have easy access to public records in order that the society remain free and democratic. Towards these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.”

29 Del. C. § 10003 provides that all public records must be made available to the public upon request for inspection and copying. A public record is defined 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 [.]
29 Del. C. § 10002(g) . However, 29 Del. C. § 10002(g)(6) exempts from the definition of a public record “[a]ny records specifically exempted from public disclosure by statute or common law.”

Discussion

The email in contention—the one that forwarded the Clark email to the County Chief of Staff—was information “received” by a public body, “relating … to public business,” and therefore it meets the FOIA definition of a public record. The question is whether the County is justified in claiming that the requested record is exempt from disclosure under the any of the enumerated exceptions to that definition. For the reasons that follow, the requested record comes within the common law exemption from public disclosure for records that reveal the identity of an informant, and is therefore not a public record pursuant to 29 Del. C. § 10002(g)(6) .

2 Delaware has recognized a common law right to privacy concerning the identity of an informant. Bd. of Educ. of Colonial Sch. Dist. v. Colonial Educ. Ass’n. , 1996 WL 104231 (Del. Ch.) . In that case, the court ruled that, in the context of a disciplinary hearing by the Public Employees Review Board, a school district could protect the privacy of students who had made complaints of inappropriate sexual contact by a teacher. Although the accused teacher had a right under labor relations law to “relevant, non-privileged information necessary” to his defense, the court found in the common law “legitimate privacy interests” in the anonymity of the students. Id. , at 7, 8. However, a legitimate privacy interest was not, standing alone, dispositive. In order to determine whether the informants’ privacy interest should prevail, the court instructed that the public’s need for the information must be weighed against the government’s interest in maintaining the informant’s confidentiality. Bd. of Educ. of Colonial Sch. Dist. , 1996 WL 104231, at 8 . In Elnashar v. Speedway SuperAmerica, LLC , 484 F.3d 1046 (8th Cir. 2007) , the government claimed informant’s privilege under a regulation that codifies the common law. The court held that “[t]o override the informant’s privilege, [the plaintiff] would have to show that he had a clear need for the informant’s identity, weighed against the government’s interest in protecting confidential informants’ identities.” Id. at 1052.

Thus, where the government invokes the common law informant’s privilege, we apply a balancing test, weighing the public’s interest in disclosure against the public body’s interest in protecting its sources. As a general rule, the purpose for a FOIA request is not relevant to the determination of whether a record is public or who may request a record. The reasons for requesting the information are relevant here, however, where we must ascertain whether the public’s interest in the identity of the person who forwarded Clark’s email outweighs the County’s interest in protecting its source.

In your letter of complaint to the DDOJ, you said that the County should reveal the identity of the informant in order to “add important details to the public debate ….” You went on to explain that if the informant champions the legislation discussed in the email, you may want to call on that person for his or her support, but if the informant opposes the legislation, you may want to address his or her concerns. Those reasons for requesting the informant’s identity do not implicate the purposes of FOIA as expressed in § 10001 , quoted above. Simply stated, FOIA’s purpose is to promote government accountability to the people, not to make the people accountable to the government. Accordingly, the statutory scheme does not contemplate informing the governors of the policy positions of the governed. In fact, it is difficult to imagine any reason related to FOIA’s objectives that would entitle the public to this informant’s identity. Some articulable reason why this information should be made public is necessary to put weight on the disclosure side of the scales.

3 On the other side of the balance, the government’s interest in not discouraging citizens from reporting potentially illegal conduct is almost self-evident. E.g., Elnashar , 484 F.3d at 1053 (government has a “strong interest” in withholding informant’s identity in order to “encourage” citizen informants); News-Journal Co. v. Billingsley , 1980 WL 3043, at 3 (Del. Ch.) (if civil law-enforcement investigatory files were public records there would be a “chilling effect on those who might bring pertinent information to the attention of the [public body]”). As there is no public interest weighing in favor of disclosing who forwarded Clark’s email to the County, the County is justified in protecting the informant’s identity.

Conclusion

For the reasons stated herein, it is determined that New Castle County did not violate FOIA in refusing to disclose all records relating to the June 11, 2008 email from Paul Clark.

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 08-IB11 (Del.A.G.), 2008 WL 4358318 (Del.A.G.)

End of Document
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