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 explained that FOIA's common-law privacy framework, hooked into FOIA through the § 10002(o)(6) exemption for records "specifically exempted from public disclosure by statute or common law," requires balancing a person's privacy interest against the public's interest in government accountability. The opinion notes that the office has, in several contexts, denied access to home addresses and phone numbers because the privacy interest is paramount and disclosure does not further FOIA's accountability goals.

The opinion also recognized a prior determination that voter home addresses were releasable where another Delaware law, 15 Del. C. § 4941 (voter-qualification challenges), made them "publicly available" through a separate route. But the Village argued that 15 Del. C. § 304(h) does not apply to municipal elections and that it is excluded entirely from chapter 75, the Delaware Code chapter governing municipal elections. The AG said that whether the Village is in fact exempt has to be resolved before any decision about access to the Village's voter records could issue.

The AG declined to decide. Whether the Village is exempt from the Delaware Code's municipal-elections rules is not a FOIA question, and the opinion holds that "this petition process is not the proper route to seek answers to such questions." The result preserves the office's position that a FOIA petition under § 10005 decides whether FOIA was violated, not adjacent statutory or charter questions.

What this means for you

If you are filing a Delaware FOIA for voter records

The opinion holds that home addresses and phone numbers generally carry a substantial privacy interest, and that the office has often denied access to that information because disclosure does not further FOIA's accountability goals. It also recognizes that the analysis can change when a separate Delaware law makes the same records "publicly available" through another route, as the office found in an earlier matter involving 15 Del. C. § 4941. Here the AG did not reach the balance at all, because the threshold question (whether the Village is bound by the Delaware Code's municipal-elections provisions) was outside its FOIA authority.

If you are a municipal records officer

The opinion treats the privacy interest in voters' home addresses and phone numbers as substantial under § 10002(o)(6) and the common-law right of privacy. It also shows that when a municipality raises a "colorable argument" that it is exempt from the statewide municipal-elections code (15 Del. C. ch. 75), the AG will not resolve that charter-law question through a FOIA petition, and will decline to decide the records question that depends on it.

If you are a candidate or someone considering challenging voter qualifications

The opinion notes that 15 Del. C. § 4941 addresses challenges to a voter's qualifications, and that in a prior matter the public availability of a voter's address under that section made the address releasable. The opinion does not decide whether § 4941 reaches the Village's records; it leaves that question open because the Village's exemption argument was not a FOIA matter.

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

The holding is jurisdictional: under § 10005, the AG decides whether FOIA was violated, not whether a municipality is subject to chapter 75 or other non-FOIA law. Where the records question depends on that predicate, the opinion shows the AG will decline to issue a determination and direct the parties elsewhere.

Common questions

Q: Why didn't the AG just decide whether the Village must release the addresses?
A: Because the answer depended on whether the Village is bound by the Delaware Code's municipal-elections rules, and the opinion holds that resolving the Village's exemption argument is "outside the scope of our authority" under FOIA. The petition process decides FOIA questions, not charter or other statutory questions.

Q: Are voter names public?
A: In this matter the Village had already produced a list of the names of its eligible voters in response to an earlier request. The dispute the AG addressed was only about the addresses and phone numbers, where the privacy interest is heavier.

Q: Why are home addresses and phone numbers treated as private?
A: The opinion relies on the Delaware common-law right of privacy, "the right to be let alone," which FOIA incorporates through the § 10002(o)(6) exemption. It explains that this right is balanced against the public's need for access to further government accountability, and that the privacy interest in a person's home address and phone number is given substantial weight.

Q: Does a separate election statute ever make voter addresses public?
A: The opinion recounts an earlier determination that a voter's address was releasable because its public availability was "essential to the right of a citizen to challenge a voter's qualifications under Delaware law" under 15 Del. C. § 4941. Whether that route applies to the Village's records was the open question the AG declined to reach.

Q: Can the AG be forced to decide an issue it considers outside FOIA?
A: The opinion holds that the office's authority under FOIA ends where FOIA ends, so it declined to opine on the Village's municipal-elections-law status. It does not address other avenues a requester might pursue.

Background and statutory framework

The analysis rests on two pieces. First, FOIA's exemption at 29 Del. C. § 10002(o)(6) covers records "specifically exempted from public disclosure by statute or common law." The opinion uses that exemption to bring the Delaware common-law right of privacy, "the right to be let alone," into the FOIA inquiry. The opinion stresses that the right "is not absolute" and is "qualified by the circumstances and also by the rights of others," so legitimate privacy claims are balanced against the public's need for access to further government transparency and accountability. In that balance, the privacy interest in one's home address and phone number is given substantial weight, and the office has often denied access to such information.

Second, the opinion notes a counterweight: where another Delaware statute makes the records "publicly available," the balance can shift. It cites a prior matter in which a voter's address was releasable because its public availability was "essential to the right of a citizen to challenge a voter's qualifications under Delaware law" under 15 Del. C. § 4941. Whether that route reaches the Village turned on the Village's argument that 15 Del. C. § 304(h) does not apply to municipal elections and that the Village is excluded from 15 Del. C. ch. 75. Because that is not a FOIA question, the AG declined to resolve it and therefore declined to decide the records request.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions and exemptions)
• 29 Del. C. § 10005 (Petition for determination)
• 15 Del. C. § 304(h) (General provisions for elections)
• 15 Del. C. § 4941 (Voter qualification challenges)
• 15 Del. C. ch. 75 (Municipal elections)

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