Can a Delaware city redact the resumes of people nominated to volunteer boards under FOIA?

Official title

22-IB20 05/18/2022 FOIA Opinion Letter to John D. Morgan, III re: FOIA Complaint Concerning the City of Newark

Plain-English summary

The City of Newark used to post applications and resumes from people nominated to its volunteer boards and commissions. After harassment of board members in 2021, the City stopped posting that material online and made it available only by FOIA request. A resident asked for the application materials of three nominees scheduled to be considered at the February 14, 2022 Council meeting. The City eventually produced the materials but with heavy redactions, and a Council vote shortly after limited even internal vetting to the nominating councilmember alone. The petitioner challenged three things: timing of the response, the redactions, and the new "only the nominating councilmember vets" practice.

The AG found one violation. On timing, the City beat the 15-business-day clock, so no violation. On the redactions, the City failed to carry its burden of proof: the AG rejected the City's argument that volunteer board nominees should be treated like job applicants whose privacy interests outweigh disclosure. Volunteer board members exercise public authority; they are closer to candidates for public office, whose qualifications the public has a strong interest in knowing. The City was told to release the records again, redacting only home addresses, personal phone numbers and emails, references, and similar narrowly-justifiable items. On the third issue (the new internal-vetting practice), the AG declined to find a FOIA violation because FOIA does not dictate how a council vets its appointees.

What this means for you

If you are a Delaware municipality with volunteer boards or commissions

Don't assume volunteer status defeats public interest in qualifications. The AG's reasoning is that any board or commission with real authority is exercising government power, and the public has a strong interest in vetting members of that body. Specifically:

• You can redact home addresses, personal phone and email, references, and similar truly private items.
• You cannot redact job history, education, professional licenses, or substantive qualifications without a separate, articulated reason.
• If you change practice (for example, stop collecting resumes), that does not retroactively let you withhold resumes you already have.
• If members are being harassed, address the harassment directly. Stripping public records to protect officials from public oversight runs into FOIA in exactly the way this case shows.

If you are a Delaware citizen who wants to vet a board nominee

You have strong support to ask for nominees' application materials. The AG explicitly distinguished volunteer board members from City employees who have a stronger privacy claim. Cite Grimaldi v. New Castle Cnty. (Del. Super. 2016) to back the disclosure norm for resumes of public officeholders. Be ready for some narrow, well-justified redactions on personally identifying details, but the substance of someone's qualifications should be in your hands.

If you are a journalist tracking municipal appointments

Two practical points fall out of this opinion. First, applicants who initial an acknowledgment that their materials are subject to FOIA cannot later claim a privacy interest, the AG flagged that the Newark applicants had signed exactly that acknowledgment. Second, timing matters: at the moment a petition is filed, the relevant inquiry is whether the City has met its burden to justify redactions. A City response that rests on "we no longer collect this" is not a defense.

If you are an attorney for a Delaware public body considering a "no resumes collected" policy

This opinion suggests two cautions. First, simply not collecting application materials does not violate FOIA itself, but it does eliminate the public's ability to vet appointees, which the AG describes as a substantial public interest. Second, if any application materials are collected (even by individual councilmembers), they may still be public records reachable through FOIA depending on whose hands they sit in. Anticipate that part of the analysis.

Common questions

What's the line between a volunteer board member and a job applicant?

The AG drew it this way. A job applicant for a paid government position has a stronger privacy interest because the disclosure of detailed personal background may discourage applications. A volunteer board nominee, by contrast, is signing up to exercise public authority, vote on land use, allocate public resources, advise elected officials. They are more like candidates for public office. Once selected, the public interest in their qualifications becomes "significantly greater."

Why was timing not a violation here?

The City responded within 15 business days when intervening holidays were counted. The petitioner argued the response was not in his hands before the February 14 Council meeting at which the appointees were considered, but FOIA's clock is tied to the response deadline, not to when external events happen.

What can a Delaware public body redact from a resume?

Based on this opinion and prior AG opinions cited inside it: home address, personal phone, personal email, Social Security number, references, and any item that hits a recognized FOIA exemption (security risk, trade secret, confidential commercial information). Not redactable: job history, education, professional credentials, licensure, substantive qualifications relevant to the public role.

Doesn't FOIA's privacy exemption cover this?

There is no broad privacy exemption in Delaware FOIA. Section 10002(o)(6) imports common-law privacy through Barbieri v. News-Journal Co., but the privacy interest must be balanced against the public interest in the records. For volunteer board members exercising public authority, that balance leans toward disclosure.

Did the AG say the City's harassment concern doesn't matter?

The AG didn't reject the harassment concern outright, but treated it as not enough on its own. The City's better-tailored response, the AG implied, would have been targeted protective measures (criminal complaints against actual harassers, restraining orders, redacted contact information), not blanket withholding of board members' qualifications.

What about the City's new "only the nominating councilmember vets" rule?

The AG declined to find a FOIA violation in that internal practice. FOIA does not impose process on how a city council vets its appointees. If a citizen objects to that, the lever is municipal politics, not § 10005.

Background and statutory framework

The City of Newark previously posted applications and resumes for board nominees online. After harassment of members in 2021, the City voted to make application materials available only by FOIA request and removed the resumes from public posting. The petitioner submitted a February 9, 2022 FOIA request for materials on three nominees being considered at the February 14, 2022 Council meeting. He received the response on March 3, 2022 (within 15 business days when intervening holidays are counted) but the materials were heavily redacted.

Under 29 Del. C. § 10003(a), public records are open to inspection. Under § 10005(c), the public body bears the burden of justifying any denial. Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), holds that in some cases the burden requires sworn evidence. The privacy theory under § 10002(o)(6) imports common-law privacy from Barbieri (Del. 1963).

The City argued that the nominees were merely applicants (a category in which Delaware AG opinions have recognized a heightened privacy interest, e.g., 10-IB17 from 2010 and 05-IB20 from 2005). The AG rejected that framing: the nominees had been selected between the request and response (so they were no longer mere candidates for jobs), and even before selection they were not analogous to job applicants because volunteer board service is closer to public office than to public employment. The AG also pointed out that each applicant had initialed an acknowledgment that the application is subject to FOIA disclosure.

The Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016) decision held a public employee's resume could not be withheld on privacy grounds (though it was withheld in that case for a different reason, pending litigation). The AG took Grimaldi not as a bright-line rule but as evidence that resumes of public-role holders generally do not invade privacy when disclosed. Items like home address, references, personal contact info, and detailed proprietary descriptions remain redactable.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002 (definitions)
• 29 Del. C. § 10002(o)(6) (records exempted by statute or common law)
• 29 Del. C. § 10003(a) (public access)
• 29 Del. C. § 10003(h)(1) (15-business-day deadline)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof on public body)
• Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963)
• Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 10-IB17, 2010 WL 5186152 (Dec. 15, 2010)
• Del. Op. Att'y Gen. 05-IB20, 2005 WL 2334348 (July 27, 2005)
• Del. Op. Att'y Gen. 18-IB34, 2018 WL 3947262 (July 20, 2018)
• Del. Op. Att'y Gen. 09-IB01, 2009 WL 1433466 (Feb. 5, 2009)
• Del. Op. Att'y Gen. 06-IB17, 2006 WL 2630107 (Aug. 21, 2006)
• Del. Op. Att'y Gen. 01-IB17, 2001 WL 1593117 (Nov. 19, 2001)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/05/17/22-ib20-05-18-2022-foia-opinion-letter-to-john-d-morgan-iii-re-foia-complaint-concerning-the-city-of-newark/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/05/Attorney-General-Opinion-No.-22-IB20.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 22-IB20

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 22-IB20

May 17, 2022

VIA EMAIL

John D. Morgan, III

[email protected]

RE: FOIA Petition Regarding the City of Newark

Dear Mr. Morgan:

We write in response to your correspondence alleging that the City of Newark violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). 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. For the reasons set forth below, we determine that the City violated FOIA by failing to meet its burden of proof to justify its denial of access to the redacted information.

BACKGROUND

The City of Newark has several boards and commissions, whose members serve as volunteers. The members are nominated by the Mayor or councilmembers and their nominations are subject to vote by the City Council. The City previously required applicants for these positions to submit an application and resume and posted both on the City website prior to the meeting where the Council would consider the applicants. [1] At a June 2017 meeting, the City considered changing this practice to make the application materials available by FOIA request only, and you expressed concern that a response to a FOIA request may take too long, and applications might not be available at the public meeting in which the appointment was considered. [2] The City's FOIA coordinator stated that any request for an application would be answered the same day the request was submitted. [3] The City then decided to continue posting the applications materials online but with the references' contact information redacted. However, after harassment of members occurred in 2021, the City voted to discontinue the practice of posting application materials online and instead made the applications available only by FOIA request. [4] On February 9, 2022 at 8:09 p.m., you filed a FOIA request for three nominees scheduled for discussion at the February 14, 2022 Council meeting, but you did not receive a response to that request until March 3, 2022, "fully 15 working days after the submission of [your] FOIA request." [5] The City's response included the application materials of the three nominees, consisting of an application form with a few redactions and the individual's resume with substantial redactions. After this production of records, the City Council voted to allow only the nominating councilmember to assess the appointees' qualifications and vet the appointees to the City's boards and commissions. [6]

This Petition followed. You summarize three issues for this Office's consideration: 1) whether the City's response to your February 9, 2022 was timely, in light of the fact that the City did not provide you the applicants' materials before the meeting at which the applicants would be discussed and in light of the previous statement from the City staff that FOIA requests for applicants' information would be answered the same day; 2) whether the City appropriately redacted the application materials produced; and 3) whether the City's new practice of allowing the nominating councilmember sole access to the appointees' qualifications to vet the appointees to the City's boards and commissions violates FOIA. In support of your argument that the redactions are inappropriate, you point to the Superior Court case of Grimaldi v. New Castle Cnty. , which determined that the disclosure of a resume of a certain government employee would not invade the employee's personal privacy, as the public interest in information about the candidate who is awarded a government job outweighs the privacy interest of the successful applicant. [7] Consistent with this case, you argue that the application materials requested here are also subject to disclosure. You contend that the fact that the members of the boards and commissions are unsalaried should have no impact on this analysis; the public has a right to know about the officials empowered with making legally binding decisions and recommendations about significant matters, such as large development projects. Although you argue the redactions are improper, you state that you have no objection to the redaction of home addresses and personal phone numbers and email addresses, as long as the City provides a means to contact the members. Finally, you assert that the City's plan to not collect resumes from applicants going forward violates FOIA.

On April 27, 2022, the City, through its legal counsel, answered the Petition ("Response"). The City reiterates that the board and commission members are unpaid volunteers. The City alleges that the recent harassment that spurred the rule change involved negative comments to employers of these volunteers. Regarding the issue of timeliness, the City points out that the Petition concedes that the response was timely received within fifteen business days, so a violation of FOIA did not occur. The City also notes that the FOIA coordinator position was "in transition" at this time. [8] Regarding your second claim, the City asserts that its redaction of the applicants' resumes is now moot, as the City no longer collects resumes from applicants. The City also asserts that the Grimaldi case is inapplicable because the City board and commission members are unpaid volunteers. Additionally, the City contends that because the individuals whose applications you requested were merely candidates and not selected for the position at the time that your request was received, their resumes should be withheld under the higher standard for privacy applied to job applicants under FOIA precedent. The City notes that you did not submit a revised request to seek application materials for the candidates after they were chosen. Finally, the City states that your last argument is not appropriately considered, as there is no FOIA requirement to collect resumes from commission or board appointees.

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." [9] If a public body denies a FOIA request, the public body carries the burden of proof to justify the denial of access to its records. [10] In certain circumstances, a sworn affidavit may be required to meet that burden. [11] We address each of the Petition's three claims in turn below.

First, you allege that the response to your request was untimely. FOIA requires that a "public body . . . respond to a FOIA request as soon as possible, but in any event within 15 business days after the receipt thereof, either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived." [12] Accounting for the intervening holiday, the parties agree that the response to your request was provided within fifteen business days. As such, we find no violation in this regard.

Second, you allege that the redactions in the produced records, except those protecting home addresses and personal phone numbers and email addresses, were improper under FOIA. The City first argues that it no longer collects resumes so this change in practice moots the need to address this issue. FOIA requires a public body to provide access to existing public records, regardless of the City's current practices for collecting those records, and as copies were provided with the Response, responsive records exist in this case. Thus, we do not believe that this issue is moot.

Alternatively, the City argues that its redaction of certain information should be upheld; the Grimaldi case does not apply to this request, as the board and commission members are not employees. Instead, the City contends that the request asked for the applications for three candidates for board or commission appointments, and at the time of the request, these candidates were merely applicants, who have a greater expectation of privacy under law. Section 10002(o)(6) exempts any "records specifically exempted from public disclosure by statute or common law," including the common law right of privacy recognized in Delaware. [13] We agree that job applicants, as opposed to employees selected for the job, have a greater privacy interest in the records they submit seeking employment, but the individuals referenced in your FOIA request are not candidates for a City job; they are more akin to a candidate for public office. [14] In addition, these volunteer members were approved for appointment several days after the request was made and several weeks before the City's response to the request. Thus, analyzing the withheld information in this case under the standard for job applicants is not proper, and now that the candidates have been selected for the City boards and commissions, the public interest in their qualifications to hold these positions is significantly greater. [15]

As the City has provided no further rationale or basis to support its redaction of the provided records nor any basis to conclude that the records were properly reviewed in accordance with that rationale, we find that the City has failed to satisfy its burden of proof in this case. Accordingly, we recommend that the City, in accordance with the allowable timeframe in Section 10003(h), produce the requested records to you without redaction, with the exception of home addresses, personal phone numbers or email addresses, references, and any other redactions appropriate under FOIA. [16]

Finally, you allege that the City's new procedures for soliciting application materials and appointing members to its boards and commissions are not appropriate under FOIA. There is no requirement in FOIA requiring a public body to collect any certain materials from its nominees for boards and commissions or to undertake any certain process for vetting nominees. [17] Thus, we find no violation under FOIA in this regard.

CONCLUSION

For the foregoing reasons, we conclude that the City violated FOIA by failing to meet its burden of proof to justify its denial of access to the redacted information.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc: Paul E. Bilodeau, City Solicitor

[1] Petition, p. 1-2.
[2] Id., p. 2.
[3] Id.
[4] Id., p. 7.
[5] Id., p. 4.
[6] Id., Seventh Attachment.
[7] Id., p. 5 (citing Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016) (holding that although the release of the County Risk Manager's resume would not invade her personal privacy, the resume was properly withheld under the pending litigation exemption)).
[8] Response, p. 2.
[9] 29 Del. C. §§ 10002, 10003(a).
[10] 29 Del. C. § 10005(c).
[11] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[12] 29 Del. C. § 10003(h)(1).
[13] Barbieri v. News-Journal Co., 189 A.2d 773, 774 (Del. 1963) (citation omitted).
[14] See, e.g., Del. Op. Att'y Gen. 10-IB17, 2010 WL 5186152, 2 (Dec. 15, 2010) ("This office has extended the right of privacy to 'records relating to the job qualifications of applicants for public employment[.]'"); Del. Op. Att'y Gen. 05-IB20, 2005 WL 2334348, 2 (July 27, 2005).
[15] We note that each applicant for a City board or commission member initialed an acknowledgment in the application that the application is subject to disclosure under FOIA. See Petition, Seventh Attachment.
[16] Without clarification from the City regarding the underlying information that has been redacted, we note that the above items cannot be a comprehensive list, but certain information that is likely in the application materials is not subject to disclosure in these circumstances. See, e.g., Del. Op. Att'y Gen. 18-IB34, 2018 WL 3947262, 3, n. 19 (July 20, 2018); Del. Op. Att'y Gen. 09-IB01, 2009 WL 1433466, at 2 (Feb. 5, 2009); Del. Op. Att'y Gen. 06-IB17, 2006 WL 2630107, at 7 (Aug. 21, 2006); Del. Op. Att'y Gen. 01-IB17, 2001 WL 1593117, at 2 (Nov. 19, 2001).
[17] 29 Del. C. §§ 10001-10007.