Can Delaware's agriculture agency withhold bird flu depopulation records under veterinary privilege or the investigatory-files exemption?

Official title

22-IB18 05/09/2022 FOIA Opinion Letter to Will Lowrey re: FOIA Complaint Concerning the Delaware Department of Agriculture

Plain-English summary

In February 2022, the Delaware Department of Agriculture identified avian influenza in a commercial chicken flock in New Castle County and the flock was depopulated. Will Lowrey, an attorney for the animal-advocacy group Animal Outlook, asked DDA for records describing the methods, procedures, and protocols used to kill the flock, the records approving those methods, and any photographs or videos. DDA denied the entire request, citing the federal Privacy Act, a Delaware investigatory-files exemption, the veterinary-confidentiality statute, and the FOIA working-draft exception, in shifting combinations as the case progressed.

The AG found DDA failed to justify denial of the first and second items and recommended review and a supplemental response with responsive records, subject to appropriate redactions. Its discussion addressed the veterinary privilege, investigatory-files exemption, and working-draft claim. It did not decide whether the federal Privacy Act applied.

What this means for you

For animal-welfare advocates and journalists covering agricultural disease outbreaks. The petitioner argued that the federal Privacy Act covers federal agencies and cited case law about federal exemptions. DDA said USDA had jointly prepared the records and typically invoked that Act. The AG did not resolve those Privacy Act arguments; it found DDA had not justified withholding under the other grounds discussed in the opinion.

For Delaware farmers facing a depopulation order. DDA described the Appraisal and Indemnity Request Form as completed jointly by the State veterinarian, the USDA or state case manager, and the premises owner; it records the method and reasons for its selection. DDA called the form a draft because USDA had not signed it. The AG said DDA had not shown whether the form was still being revised before presentation to a public body, so it could not determine that the working-draft exception applied.

For Delaware veterinarians working with state regulators. The opinion confirms the veterinary-confidentiality privilege in 24 Del. C. § 3316 and 24 Del. Admin. C. § 3300-4.1, and lists its three express exceptions: when required by law, subpoena, or court order or to protect the health and welfare of other people or animals; when sharing diagnosis or treatment between veterinarians or facilities; and when sharing with peace officers, humane society officers, or animal control officers acting to protect welfare. The AG held that DDA failed because it did not address the privilege's full scope, including those three exceptions, as applied to the requested records.

For Delaware FOIA coordinators generally. DDA did not explain how the veterinary privilege and its exceptions applied to the requested records, how its investigation served a civil or criminal law-enforcement purpose, or whether the unsigned form was still being revised. Those gaps left DDA short of its burden to justify denial.

Common questions

What did Animal Outlook actually want?
Three categories: any records about the method, procedures, and protocol for the depopulation; any records about approval of those methods; and any photographs or videos taken before or after the event. DDA had no responsive photos or videos and Animal Outlook did not contest that finding.

Did the AG decide whether the federal Privacy Act protected these records?
No. The petitioner argued that the Act did not cover the requested records and cited federal case law. DDA said USDA jointly prepared the records and typically invoked the Act. The AG's discussion instead addressed veterinary privilege, investigatory files, and the working-draft claim.

What about the investigatory-files exemption under § 10002(o)(3)?
This exemption covers "investigatory files compiled for civil or criminal law-enforcement purposes." DDA said the records were part of an investigation bearing on whether farm owners could be indemnified. The AG found DDA had not explained how the investigation entailed civil or criminal law enforcement; it did not rule that every indemnity investigation falls outside the exemption.

What about the working-draft exception?
Delaware AG Opinion 21-IB15 recognizes a working-draft exception for documents still being revised before presentation to a public body. DDA said the Appraisal and Indemnity Request Form was unsigned. The AG said DDA had not indicated whether it met the working-draft standard, so the AG could not determine that the exception applied.

Did DDA produce the records eventually?
The AG recommended that DDA review its records and supplement its response within the timeframes in 29 Del. C. § 10003(h), subject to any appropriate redactions. The opinion does not record the final disposition of the supplemental production.

Background and statutory framework

The depopulation request fell against a backdrop of three major Delaware FOIA exemptions and one federal statute:

• 29 Del. C. § 10002(o)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes. The AG found DDA had not explained how the investigation it described served such a purpose.
• 29 Del. C. § 10002(o)(6) exempts records "specifically exempted from public disclosure by statute or common law." The AG analyzed DDA's veterinary-privilege theory under this provision and found its explanation insufficient.
• Section 10002(o)(17) exempts records related to security concerns. DDA initially invoked this to protect operational details about the depopulation but later withdrew the argument because the depopulation was complete.
• 24 Del. C. § 3316 and 24 Del. Admin. C. § 3300-4.1 provide veterinary confidentiality, with three express exceptions. The agency cannot ignore the exceptions.

The opinion cites Judicial Watch, Inc. v. Univ. of Del. for the point that an affidavit may be required in some circumstances. DDA's Chief of Community Relations submitted one, but the AG identified gaps in DDA's Response concerning the privilege's exceptions, the law-enforcement purpose, and whether the form met the working-draft standard.

Citations

• 29 Del. C. § 10002(o)(3): investigatory files exemption
• 29 Del. C. § 10002(o)(6): exempted by other statute or common law
• 29 Del. C. § 10002(o)(17): security-related exemption
• 29 Del. C. § 10003: general public-records access
• 29 Del. C. § 10005(c): burden of proof on public body
• 24 Del. C. § 3316: veterinary discipline for breach of privileged communication
• 24 Del. Admin. C. § 3300-4.1: veterinary confidentiality regulation
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): sworn-affidavit requirement
• Del. Op. Att'y Gen. 21-IB15, 2021 WL 3160273 (July 2, 2021): narrow working-draft exception

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/05/09/22-ib18-05-09-2022-foia-opinion-letter-to-will-lowrey-re-foia-complaint-concerning-the-delaware-department-of-agriculture/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/05/Attorney-General-Opinion-No.-22-IB18.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB18

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB18

May 9, 2022

VIA EMAIL

Will Lowrey, Counsel

Animal Outlook

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Agriculture

Dear Mr. Lowrey:

We write in response to your correspondence submitted on behalf of your client, Animal Outlook, alleging that the Delaware Department of Agriculture ("DDA") 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. As discussed below, we find that the DDA violated FOIA by failing to meet its burden of proof to justify its denial of access to the first and second items of your request.

BACKGROUND

On March 1, 2022, you sent a request to the DDA for "records related to the depopulation of animals subsequent to the February 2022 identification of avian influenza in a commercial chicken flock in New Castle County, Delaware," specifically seeking:

Any records related to the method, procedures, and protocol for the depopulation

Any records related to the approval of the methods, procedures, and protocol for the depopulation

Any photographs or videos related to the depopulation, whether taken before or after the actual event[.] [1]

The DDA denied your request in its entirety, asserting that no responsive records exist for the third item and the remaining records are not public pursuant to 29 Del. C. § 10002(o)(6) exempting records statutorily precluded from disclosure, including but not limited to, records under the federal Privacy Act, and 29 Del. C. § 10002(o)(17) exempting records implicating certain security concerns.

This Petition followed, alleging that the DDA violated FOIA by denying access to the records requested in the first and second items. [2] You contend that the Privacy Act does not cover the requested records because this Act only covers federal, not state, agencies and the type of records you seek are not covered by the definition of "record" under the Privacy Act. Even if this Act applies, you contend that the records still must be disclosed because federal case precedent establishes that to qualify for nondisclosure, both an exemption under the Privacy Act and an exemption under the federal FOIA statute must apply to the requested records. Further, to the extent the DDA believes that certain names, such as employee names, should be redacted for privacy concerns, you argue that the records should still be produced with any appropriate redactions. With respect to the security records exemption, you allege that you are not seeking any records that fall under this exemption, such as records related to law enforcement technique documentation, personal files, other blueprints, IT infrastructure, or other security information that could endanger a life. Finally, you state that when you submitted this identical request to other jurisdictions, states with similar provisions have provided responsive records.

On April 19, 2022, the DDA, through its counsel, replied to your Petition ("Response") and included the affidavit of the Chief of Community Relations, who serves as the FOIA coordinator. In its Response, the DDA withdraws its assertion of the security records exemption, as the basis for its concerns are mooted by completion of the depopulation process, but the DDA argues that the requested records are not subject to disclosure under other exemptions. The DDA asserts 29 Del. C. § 10002(o)(6) applies to the requested records, as these records are exempted from disclosure by statute. The DDA states that it invoked the Privacy Act in response to this request, because the U.S. Department of Agriculture ("USDA") jointly prepared these records and advised the DDA that it typically asserts the Privacy Act in response to similar requests. The DDA further contends that veterinary advice is privileged under Delaware law; 24 Del. C. § 3316 provides that a licensed veterinarian will be subject to discipline for willfully violating any privileged communication, and the accompanying regulation, 24 Del. Admin. C. § 3300-4.1 states that "veterinarians must protect the personal privacy of patients and clients by not willfully revealing communications regarding the diagnosis and treatment of an animal." The DDA then invokes a new rationale – the investigatory files exemption which exempts "investigatory files compiled for civil or criminal law-enforcement purposes." [3] The DDA claims that the investigatory files exemption applies to these records; both USDA staff and the State Veterinarian and Deputy State Veterinarian assist with investigating and minimizing the spread of the avian influenza. The DDA Chief of Community Relations attests that "[f]arm owners may be indemnified by the USDA for the value of their losses if they were not found to be negligent in addressing the outbreak and minimizing spread." [4] She further attests that State veterinarians provide advice to the farm owners regarding the method to depopulate, which is reflected in the Appraisal and Indemnity Request Form, completed jointly by the State veterinarian and the USDA or state case manager, and premises owner, and details the depopulation method and the operational reasons for selecting the method. The DDA Chief of Community Relations also attests that Incident Action Plans are also prepared for affected premises, are signed off by State veterinarians, and "sometimes include veterinary advice specific to depopulation methods." [5] According to the DDA, both the Appraisal and Indemnity Request Forms and Incident Action Plans are part of the civil investigatory files used by the USDA to determine the farm owners' negligence and whether indemnification is appropriate. Finally, the DDA contends that the Appraisal and Indemnity Request Form that is responsive to this request is a draft document, subject to the working draft exception, until signed by the USDA. The DDA Chief of Community Relations attested that the USDA has not yet signed this document.

DISCUSSION

FOIA mandates that a public body provide citizens with reasonable access to public records for inspection and copying, but certain records and information are excluded from the definition of "public record." [6] When a public body denies access to records, the public body has the burden of proof to justify its denial. [7] In certain circumstances, a sworn affidavit may be required to meet that burden. [8]

The DDA Chief of Community Relations attests that she reviewed the DDA's files for responsive records and found two types of documents containing the requested information: 1) the USDA Appraisal and Indemnity Request Forms; and 2) the Incident Action Plans. [9] The DDA contends that any veterinarian communications regarding the diagnosis or treatment of an animal in these records was properly withheld under the statutory privilege for veterinary advice. [10] Delaware law recognizes that veterinarians have a duty to maintain the confidentiality of privileged communications, stating veterinarians will be subject to discipline for "willfully violat[ing] any privileged communication." [11] This concept of "privileged communications" is further defined in the accompanying regulation, stating "[v]eterinarians must protect the personal privacy of patients and clients by not willfully revealing privileged communications regarding the diagnosis and treatment of an animal." [12] Three exceptions to the privileged communications allow for the sharing of veterinary medical information regarding the diagnosis and treatment of an animal: 1) when required by law, subpoena, or court order or when it becomes necessary to protect the health and welfare of other individuals or animals; 2) between veterinarians or facilities for the purpose of diagnosis or treatment of animals; and 3) between veterinarians and peace officers, humane society officers, or animal control officers who are acting to protect the welfare of individuals or animals. [13] In its Response, the DDA asserts that the State veterinarians and USDA officials work with the farm owners to diagnose, and advise regarding treatment for avian influenza. However, the DDA fails to specifically address the applicability of the full scope of this privilege, including the three exceptions, to the requested records. Thus, we determine that the DDA has not sufficiently supported its denial of access to the requested records under Section 10002(o)(6) to meet its burden.

Section 10002(o)(3) exempts "investigatory files compiled for civil or criminal law-enforcement purposes." According to the DDA, the USDA staff and State veterinarians assist with investigating and minimizing further spread of the avian influenza, and farm owners may be indemnified by the USDA for the value of their losses if the investigation reveals they were not negligent in addressing the outbreak and minimizing the spread. The DDA alleges that the Appraisal and Indemnity Request Form and Incident Plan both are part of the investigatory file determining whether indemnification is appropriate. However, the DDA does not explain how the purpose of this investigation entails "civil or criminal law-enforcement." Accordingly, we find that the DDA failed to meet its burden of demonstrating that the investigatory files exemption applies here.

The DDA acknowledges that a responsive Appraisal and Indemnity Request Form exists but as it is unsigned by the USDA, the DDA contends that this form qualifies as a draft that is not producible under FOIA. This Office has previously determined that the working draft exception applies to draft documents that a public body is still revising prior to presentation to a public body. [14] The DDA has not indicated whether this form meets this standard, so we cannot determine that this exception applies to the Appraisal and Indemnity Form in the DDA's possession.

In sum, we find that the DDA violated FOIA by failing to satisfy its burden of demonstrating the denial of access to the requested records is justified under FOIA. As such, we recommend that the DDA review its records and supplement its response to your request in accordance with this Opinion with the responsive records, subject to any redactions otherwise appropriate under FOIA, within the timeframes provided for a response in Section 10003(h). [15]

CONCLUSION

Based on the foregoing, we conclude that the DDA violated FOIA by failing to meet its burden of proof to justify its denial of access to the records requested in the first and second items of your request.

Very truly yours,

/s/ Alexander S. Mackler

_____

Alexander S. Mackler

Chief Deputy Attorney General

cc: Adria B. Martinelli, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[1] Petition.

[2] The Petition does not challenge the DDA's response to the third item of the request. The references to your "request" for purposes of this Opinion's discussion is limited to the first and second items of the request.

[3] 29 Del. C. § 10002(o)(3).

[4] Response.

[5] Id.

[6] See 29 Del. C. §§ 10002, 10003(a).

[7] 29 Del. C. § 10005(c).

[8] Judicial Watch, Inc. v. Univ. of Del. , 267 A.3d 996 (Del. 2021).

[9] Response.

[10] The Chief of Community Relations attests that Incident Action Plans sometimes contain privileged veterinary advice specific to depopulation methods.

[11] 24 Del. C. § 3316.

[12] 24 Del. Admin. C. § 3300-4.1.

[13] Id.

[14] Del. Op. Att'y Gen. 21-IB15, 2021 WL 3160273, at *6 (July 2, 2021) ("We believe that the courts in Delaware would not define a 'public record' under FOIA to include a working draft which the author is still revising prior to presentation to a public body," and ". . . premature disclosure of draft contracts under negotiation also could compromise the public body's (and the public's) competitive position in those negotiations.") (citation omitted).

[15] See id. at *7 ("We recommend [the public body] review its records in accordance with this Opinion and provide a supplemental response to you in accordance with the timeframes permitted in Section 10003(h). This response is recommended to include . . any responsive records, . . . subject to any redactions otherwise appropriate under FOIA.").