Can a Delaware agency refuse to release records about how it killed a bird flu flock by claiming veterinary privilege and a federal Privacy Act 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 ruled against DDA on every theory and recommended that the agency review its records and supplement its response. The opinion is one of the cleanest examples in the DE FOIA corpus of how a public body cannot stack multiple thin exemptions in the hope that one will stick. Each exemption needs concrete, on-the-record application to the specific records being withheld, not a citation and a shrug.
What this means for you
For animal-welfare advocates and journalists covering agricultural disease outbreaks. When USDA and a state department of agriculture jointly run a depopulation event, you can expect the state agency to invoke federal Privacy Act language, even though the Privacy Act applies only to federal agencies and only to certain records. Push back. Ask which specific federal "system of records" the agency claims is implicated, and ask why the federal Privacy Act would override Delaware FOIA when the records are physically held by a Delaware agency. The AG made clear in this opinion that a generic citation to the Privacy Act is not enough.
For Delaware farmers facing a depopulation order. The Appraisal and Indemnity Request Form is the document that determines whether USDA will reimburse you for the value of your destroyed flock. DDA tried here to block disclosure of that form by calling it a "draft," but the AG was unconvinced because DDA did not explain whether anyone was still revising it. If you are negotiating indemnity, the form's contents are relevant to other producers and journalists, and a generic "draft" label will not keep it from public view.
For Delaware veterinarians working with state regulators. The veterinary-confidentiality privilege in 24 Del. C. § 3316 and 24 Del. Admin. C. § 3300-4.1 is real, but it has three express exceptions: when required by law, subpoena, or court order; 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. An agency invoking the privilege has to walk through those exceptions, not just gesture at the statute.
For Delaware FOIA coordinators generally. Multiple-exemption stacking is a tell. If your denial letter cites four exemptions, the AG is going to look at each one independently, and "we shifted to a new theory after the petition was filed" is itself a problem. Build the affidavit, name the documents, and explain why the specific document falls within a specific exemption.
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.
Why didn't the federal Privacy Act work as a defense?
The Privacy Act, 5 U.S.C. § 552a, governs federal agencies. DDA is a state agency. DDA argued that because the records were jointly prepared with USDA, the Privacy Act applied, and because the Privacy Act applied, the records were "specifically exempted from disclosure by statute or by common law" under 29 Del. C. § 10002(o)(6). The AG found this insufficient because DDA never identified which specific Privacy Act exemption matched the records, and the case law DDA pointed to required both a federal FOIA exemption and a Privacy Act exemption to apply.
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 depopulation records were part of an investigation into whether the farm owners had been negligent, because that determines whether USDA pays indemnity. The AG noted that DDA never explained how this kind of indemnity-related fact-finding qualifies as "civil or criminal law-enforcement," and rejected the argument.
What about the working-draft exception?
Delaware AG Opinion 21-IB15 recognizes a narrow working-draft exception: documents that the author is still actively revising before presentation to a public body. DDA said the Appraisal and Indemnity Request Form was a draft because USDA had not yet signed it. But DDA did not say the document was still being revised; the absence of a signature does not by itself make a document a draft. The AG declined to apply the exception on this record.
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:
- Section 10002(o)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes. The AG has consistently required agencies to identify the law-enforcement purpose with specificity. Indemnity disputes are not "law enforcement."
- Section 10002(o)(6) exempts records "specifically exempted from public disclosure by statute or common law." Federal statutes can fall under this clause, but the agency has to point to a specific federal exemption that applies to the specific record.
- 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 Delaware Supreme Court's 2021 Judicial Watch v. University of Delaware decision made affidavit specificity a baseline requirement. Counsel's representations alone are not "competent, reliable evidence" for purposes of meeting the § 10005(c) burden. The DDA Chief of Community Relations did sign an affidavit here, but the affidavit's content was generic and did not walk through the exemptions' specific elements, which is why the agency lost.
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
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.").