Can a Delaware village resident FOIA the home addresses and phone numbers of all eligible voters in the village?

Plain-English summary

Joe Berg asked the Village of Ardencroft for the home addresses and phone numbers of all eligible voters. He had previously received a list of names. The Village denied, citing privacy concerns. Berg petitioned, alleging FOIA and Title 15 violations.

The AG would normally weigh the privacy interest in addresses and phone numbers against the public-accountability interest under FOIA's common-law privacy framework. Op. 09-IB01 (fire-school records), Op. 06-IB17 (financial-disclosure records), and Op. 01-IB17 (retiree records) all denied access to home addresses and phone numbers because the privacy interest is "paramount" and disclosure does not further FOIA's accountability goals.

But there is a wrinkle. Op. 00-IB06 held that voter home addresses are releasable when 15 Del. C. § 4941 (voter-qualification challenges) makes them publicly available through another route. The Village argued that 15 Del. C. § 304(h) does not apply to municipal elections and that the Village is exempt from chapter 75 (the municipal-elections chapter). If the Village is right, then § 4941's other-route argument fails, and the standard privacy rule kicks in.

The AG decided not to decide. Whether the Village is actually exempt from the Delaware Code's municipal-elections rules is a question of municipal-charter law, not FOIA. The AG's FOIA jurisdiction does not include answering that threshold question. Op. 19-IB27 articulated the same limit (the AG cannot enforce non-FOIA statutes through FOIA petitions). The AG punted: "this petition process is not the proper route to seek answers to such questions."

The opinion is unsatisfying as practical guidance, but it preserves the AG's institutional position that FOIA petitions decide FOIA questions, not adjacent legal questions.

What this means for you

If you are filing a Delaware FOIA for voter records

Voter home addresses and phone numbers are usually exempt under common-law privacy unless one of these is true:

1. A separate Delaware statute makes them publicly available (like 15 Del. C. § 4941 for voter-qualification challenges). When that is the case, the privacy argument fails and the records must be released.
2. The records are aggregate or non-identifying (counts by district, registration totals). Aggregate data does not implicate individual privacy.

Practical drafting: ask for the records in the form you actually need. If you only need addresses to challenge voter qualifications, cite § 4941 in your request and explain why that section makes the records public. If you can use a different format (precinct-level aggregation, anonymized lists), ask for that.

If you are running a campaign or political organization

Voter-list access is governed by the Delaware Department of Elections and is not a FOIA matter. Campaign committees can typically purchase the voter file from the state through the official channel. Most municipal elections are similar. Use those channels, not FOIA.

If you are a municipal records officer

When a request asks for voter home addresses or phone numbers:

• Default to denial under § 10002(o)(6) (statute/common-law privacy) and the common-law right of privacy.
• Watch for § 4941 carve-outs (qualification challenges) where Delaware Code makes the data publicly available through another route.
• If your municipality is exempt from chapter 75 (or has its own charter rules), document that in your denial. The AG will likely not decide the underlying chapter-75 question.

If you are a candidate considering challenging voter qualifications

15 Del. C. § 4941 lets you challenge voter eligibility, and that procedure may give you access to voter data that pure FOIA would not. The procedure is technical; consult an election attorney before relying on it.

If you are an attorney advising a municipality on voter-records disputes

The AG's punt here is a planning lesson. If you anticipate a FOIA fight over voter records, build the record now:

• Obtain a clear opinion on whether your municipality is exempt from chapter 75.
• Document the privacy harm: identifying details about voters can be misused.
• Cite the long line of AG opinions denying address and phone disclosure (09-IB01, 06-IB17, 01-IB17, plus this one).

Common questions

Q: Why didn't the AG just decide whether the Village is subject to chapter 75?
A: That is a municipal-charter question, not a FOIA question. Section 10005(e) limits the AG's jurisdiction to deciding whether FOIA was violated. The AG cannot decide other statutory or charter questions through the petition process. Op. 19-IB27 articulates this limit.

Q: Are voter names public?
A: Generally yes, voter-registration lists with names are public. The Village had already produced the names. Privacy arguments tend to come into play when the records include addresses, phone numbers, or other identifying details.

Q: Why are home addresses considered private?
A: The Delaware common-law right of privacy protects "the right to be let alone" (Barbieri). Home addresses and phone numbers are personal-identifier categories. Op. 06-IB17 explicitly held that "disclosure of personal identifiers like home address and telephone number, e-mail address, user ID number, or password would invade personal privacy and is not essential for government accountability."

Q: Don't candidates need addresses to send mailers?
A: Yes, and the regular voter-file purchasing process (through the Department of Elections) gives campaigns access. That is a separate channel from FOIA.

Q: What is the Village of Ardencroft?
A: Ardencroft is a small Single-Tax community in northern Delaware (founded as a single-tax experiment in the early 20th century). Its self-governance rules differ from typical Delaware municipalities, which is why the Village argued it is exempt from chapter 75.

Q: Does the citizens-only rule apply here?
A: Berg appears to have been a Village resident and Delaware citizen, so the citizens-only rule was not at issue. If a non-citizen made the same request, that would be an independent ground for denial (see Op. 24-IB47).

Q: Can the AG be forced to decide an issue it considers outside FOIA?
A: No. The AG's FOIA petition jurisdiction is statutory; it ends where FOIA ends. A requester unsatisfied with a punt can sue in Court of Chancery, where the court has broader equitable jurisdiction.

Q: What's the most useful piece of doctrine in this opinion?
A: The reaffirmation that personal identifiers (home address, phone, email, user ID, password) are categorically privacy-protected absent a specific statute making them public. That is a useful tool when fending off bulk requests for personal data.

Background and statutory framework

The privacy framework rests on three pieces:

1. Common-law right of privacy. Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963), recognized "the right to be let alone." Guthridge v. Pen-Mod, Inc., 239 A.2d 709 (Del. Super. 1967), confirmed the right is not absolute and must be balanced against other rights.
2. FOIA's statutory hook for common-law privacy. Section 10002(o)(6) exempts records "specifically exempted from public disclosure by statute or common law." That makes the common-law right operative under FOIA.
3. AG balancing test. Op. 13-IB03 and Op. 13-IB06 apply a privacy-versus-accountability balance. Personal identifiers like home addresses and phone numbers are generally weighted heavily in favor of privacy because their disclosure does not advance accountability.

Op. 00-IB06 created an exception when other Delaware law makes the records publicly available. That carve-out turns on the meaning of "publicly available" through another route. Here, the Village's status under chapter 75 was the predicate question, and the AG declined to answer.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions and exemptions)
- 29 Del. C. § 10005 (Enforcement; AG petitions)
- 15 Del. C. § 4941 (Voter qualification challenges)
- 15 Del. C. ch. 75 (Municipal elections)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963), common-law right of privacy
- Guthridge v. Pen-Mod, Inc., 239 A.2d 709 (Del. Super. 1967), privacy not absolute

Prior AG opinions:
- Del. Op. Att'y Gen. 00-IB06 (Mar. 8, 2000), voter home addresses public when made available through § 4941
- Del. Op. Att'y Gen. 01-IB17 (Nov. 19, 2001), retiree home addresses exempt
- Del. Op. Att'y Gen. 06-IB17 (Aug. 6, 2006), personal identifiers categorically protected
- Del. Op. Att'y Gen. 09-IB01 (Feb. 5, 2009), fire school records redactable
- Del. Op. Att'y Gen. 13-IB03 (July 12, 2013), privacy-versus-accountability balance
- Del. Op. Att'y Gen. 13-IB06 (Nov. 20, 2013), same

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/18/22-ib11-04-18-2022-foia-opinion-letter-to-joe-berg-re-foia-complaint-concerning-the-village-of-ardencroft/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB11.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB11
April 18, 2022

VIA EMAIL
Joe Berg
[email protected]

RE: FOIA Petition Regarding the Village of Ardencroft

Dear Mr. Berg:

We write in response to your correspondence alleging that the Village of Ardencroft violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in regard to your records request. 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. As discussed more fully herein, we determine that your current question is outside the scope of this Office's jurisdiction to opine upon.

BACKGROUND

In response to a previous request for records, the Village provided you with a list of the names of the Village's eligible voters. After receiving that record, you made a second request on February 11, 2022 for the "addresses and phone numbers" of the Village's eligible voters. On February 14, 2022, the Village Chairperson declined to provide the information, citing privacy concerns. The Chairperson later asserted that he would not provide further information unless directed by the Village's legal counsel. You then filed this Petition, asserting that the Chairperson has had ample time to speak with the attorney about your request and alleging the Village failed to produce records in violation of Title 15 of the Delaware Code and FOIA.

Counsel to the Village provided a response on March 29, 2022 ("Response"). The Response contends that your request for the addresses and phone numbers of eligible voters was properly denied. The Village Chairperson raised the privacy concerns of releasing this information and noted that this information is publicly available from other sources, like the community directory available to Village residents. The Village contends that, contrary to your assertion, 15 Del. C. § 304(h) does not apply to municipal elections. Further, the Village argues it is excluded entirely from the Delaware Code governing municipal elections, 15 Del. C. ch. 75. The Village maintains that its obligations regarding elections are governed by the Village's by-laws, ordinances, and charter.

DISCUSSION

Under FOIA, a public body carries the burden of proof to justify denial of a request for records. In certain circumstances, a sworn affidavit may be required to meet that burden. The sole issue for consideration in this Opinion is whether the Village properly denied your FOIA request for the home addresses and phone numbers for the Village's eligible voters.

Section 10002(o)(6) exempts any "records specifically exempted from public disclosure by statute or common law." The Delaware Supreme Court has recognized a common law right of privacy, or as it has been described, "the right to be let alone." However, this right is not absolute. Rather, it is "qualified by the circumstances and also by the rights of others." In the FOIA context specifically, "we have determined that legitimate privacy claims under Delaware common law must be balanced against the competing need for access to information to further the accountability of government." "When legitimate privacy rights are implicated under FOIA, we must balance those rights against the competing need for access to information to further FOIA's primary goals — government transparency and accountability." It is a fact-specific analysis, but the privacy interest in one's home address and phone numbers is given substantial weight. In several contexts, this Office has denied access to such personal information, finding that the privacy interest is paramount and that allowing access to home addresses and phone numbers does not further FOIA's goals of promoting government accountability.

However, your request seeks the home addresses and phone numbers of the Village's eligible voters. When our Office previously considered a request for a list of felony conviction information that the Department of Elections receives from Superior Court to cross check with the voter registration records, this Office found that the home addresses were releasable, stating "[w]hile disclosure of a person's address may be considered an invasion of personal privacy under certain circumstances, the public availability of a voter's address is essential to the right of a citizen to challenge a voter's qualifications under Delaware law," citing 15 Del. C. § 4941. In other words, the fact that the records were made publicly available through another route under Delaware law informed that decision. We do not believe that such an analysis is appropriate here. The Village has presented a colorable argument that the Village is exempt from the Delaware Code requirements for municipal elections. An assessment of the validity of the Village's legal position regarding municipal elections law is required before we are able to issue a determination about public access to voter records possessed by the Village. While we believe, consistent with our precedent, that home addresses and phone numbers do not further government accountability in most cases, we cannot opine on such an issue in the context of your rights to review election records under the Village's laws. Such an analysis is outside the scope of our authority, and this petition process is not the proper route to seek answers to such questions.

CONCLUSION

For the reasons set forth above, we determine that this issue presented regarding the Village's eligible voter records is outside the scope of this Office's authority.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: Edward B. Rosenthal, Attorney for the Village