Can a rejected job applicant FOIA the school district's emails and selection records about the positions he applied for, including communications about his own application?

Plain-English summary

Jonathan Hamburg applied for eight positions at Cape Henlopen School District. None resulted in an offer. He filed a FOIA request for "all emails and/or correspondence regarding the selections" for those eight positions, including correspondence with his name. The District denied, citing the personnel-file analogy and Op. 18-IB13 (which addressed personnel-file access by current employees under 19 Del. C. § 733).

Hamburg petitioned, arguing he was not an employee, so the personnel-file exemption did not apply.

The AG ruled for the District but on a slightly different theory. The Supervisor of Human Resources attested that hiring-process records are stored in individual candidate files and reflect "judgment, scores and ranking as to how evaluators assessed each candidate's competencies and abilities." That made the records subject to common-law privacy under § 10002(o)(6).

The AG balanced the privacy interest against the accountability interest:

• Discussions of applicants' qualifications and competencies have a significant privacy interest. Op. 10-IB17 and Op. 05-IB20 confirm that the right of privacy extends to "records relating to the job qualifications of applicants for public employment."
• The minimal accountability interest does not outweigh that privacy interest. Hiring discussions are quintessentially private personnel matters; § 10004(b)(1) explicitly authorizes executive-session discussion of "an individual's qualifications to hold a job."

The AG also addressed Hamburg's "but they're about me" argument: "the identity of the requesting party has no bearing on the merits of his/her FOIA request" (citing State v. Camden-Wyoming, 2012 WL 5431035). Under FOIA, "a record is public, or it is not." If Hamburg has another legal route to the records (employment litigation, IRS-style request to inspect his own file), that is outside FOIA.

What this means for you

If you applied for a public-sector job and were not selected

You probably cannot get the selection records via FOIA. Other potential routes:

• Pre-suit discovery. If you have an employment-discrimination claim, EEOC charge filings or pre-litigation document requests may reach this material.
• Requesting your own file under § 733. This applies to current and former employees, not to never-hired applicants. Op. 18-IB13 addressed the limits.
• Asking for de-identified statistics. The number of applicants, demographics of finalists, etc. may be releasable in aggregate form.

If you handle hiring for a Delaware public body

This opinion confirms that you can deny FOIA requests for hiring-selection records by citing common-law privacy. Best practice:

• Get a sworn affidavit from HR identifying how the records are stored and what they contain.
• Cite § 10002(o)(6) (statutory/common-law exemption) plus the privacy-versus-accountability balance.
• Cite Op. 24-IB30 by name in your denial.

If you are an employment attorney

This opinion is useful both ways:

• For applicants: the AG denied access here. Plan around FOIA, not through it.
• For employers: the precedent is strong. Hiring records are presumptively private absent a specific accountability concern.

The "identity of the requester is irrelevant" rule from Camden-Wyoming is also useful in many other FOIA contexts. It cuts both ways: the agency cannot give you records merely because they are about you, and cannot withhold records merely because they are about you.

Common questions

Q: Why doesn't 19 Del. C. § 733 give me access to my own application file?
A: § 733 applies to employees, not unsuccessful applicants. Op. 18-IB13 addressed § 733 and concluded that even employees may not be entitled to copies of their personnel files unless their employer permits.

Q: I have a discrimination claim. Can FOIA help?
A: Probably not directly. FOIA does not have a litigation-discovery component. Once a discrimination charge is filed (EEOC, DDOL), the regulatory procedures may give you broader access through investigative processes. Consult an employment attorney.

Q: Can the district even confirm I applied?
A: Confirmation that you applied is generally less protected than the substantive evaluation. But the records you asked for were "all emails and/or correspondence regarding the selections," which the District categorized as evaluation records.

Q: Can I get the names of the people who were selected?
A: Public-employee names and salaries are public records. The hiring announcements may be public. The internal evaluation comparing finalists is not.

Q: Why does identity of the requester not matter?
A: FOIA is a public-access law, not a personal-records law. Records are released to all or none. Op. 24-IB30 quotes Camden-Wyoming: "Under FOIA, a record is public, or it is not." If the District released to Hamburg, it would be releasing to the world.

Q: What if I just want to know my interview score?
A: That is exactly the kind of evaluative material the privacy doctrine protects. The District is not obligated to share evaluation specifics.

Q: Does this apply to private-sector hiring records?
A: Private-sector hiring records are not covered by Delaware FOIA at all. FOIA only reaches public bodies.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions; common-law exemption)
- 29 Del. C. § 10004 (Open meetings; executive sessions)
- 19 Del. C. § 733 (Personnel file access)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Reardon v. News-Journal Co., 164 A.2d 263 (Del. 1960), common-law privacy
- Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963)
- State v. Camden-Wyoming Sewer & Water Auth., 2012 WL 5431035 (Del. Super. Nov. 7, 2012), identity of requester irrelevant

Prior AG opinions:
- Del. Op. Att'y Gen. 05-IB20 (July 27, 2005), interview scoring sheets exempt
- Del. Op. Att'y Gen. 10-IB17 (Dec. 15, 2010), applicant qualification records exempt
- Del. Op. Att'y Gen. 13-IB03 (July 12, 2013), privacy-vs-accountability balance
- Del. Op. Att'y Gen. 18-IB13 (2018), employee personnel-file access

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/08/09/24-ib30-08-09-2024-foia-opinion-letter-to-jonathan-hamburg-re-foia-complaint-concerning-cape-henlopen-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/08/Attorney-General-Opinion-No.-24-IB30-1.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB30
August 9, 2024

VIA EMAIL
Jonathan Hamburg
[email protected]

RE: FOIA Petition Regarding the Cape Henlopen School District

Dear Mr. Hamburg:

We write in response to your correspondence, alleging that the Cape Henlopen School District violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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 the District did not violate FOIA by denying access to the records you requested.

BACKGROUND

After not being selected for a position with the Cape Henlopen School District, you filed a FOIA request with the District for "all emails and/or correspondence regarding the selections" for eight positions you applied for, including those containing your name. The District denied your request, asserting that like a personnel file, "the documents you request may reflect individual assessments and judgments about your qualifications, competencies and/or abilities to hold a position." The District further stated that "according to the Attorney General (Del. Op. Atty. Gen. 18-IB13 (2018)), a public records request for one's own personnel file is exempt from FOIA" because "the personnel file is the property of the employer, and even current employees cannot obtain a copy of their personnel file unless the employer permits it. 19 Del. C. §733."

This Petition followed, alleging that the District inappropriately denied this request. You argue that you are not an employee of the District and the personnel file exemption does not bar the disclosure of the records you have requested.

The District, through its legal counsel, replied to the Petition and enclosed the affidavit of the Supervisor of Human Resources ("Response"). The Supervisor attests, based on personal knowledge, that it is the District's practice to store all documents and communications produced through the hiring process for vacant positions "in individual files belonging to each potential candidate." The documents "assess judgment, scores and ranking as to how evaluators assessed each candidate's competencies and abilities." Noting that you would object to the public having access to your application, the District contends that "the disclosure of [your] requested documents and communications in response to a FOIA request would constitute an invasion of personal privacy" and the District's denial of access to these records does not violate FOIA.

DISCUSSION

The public body has the burden of proof to demonstrate its compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. In this case, you sought all correspondence about the District's selections for eight positions, including those communications with your name. The District provided statements under oath that the requested communications are part of each individual candidate's confidential file and address the evaluators' assessment of each candidate's competencies and abilities.

FOIA does not apply to records "specifically exempted from public disclosure by statute or common law." Delaware recognizes a common law right of privacy which includes protecting an individual from public disclosure of "one's affairs with which the public has no legitimate concern" or "the wrongful intrusion into one's private activities in such manner as to . . . cause mental suffering, shame or humiliation to a person of ordinary sensibility." "[I]n the context of FOIA, 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." Discussions of qualifications and competencies of applicants are subject to a significant privacy interest. As this significant privacy interest outweighs any minimal public interest in such records, we believe that the common law right of privacy protects the communications you requested regarding selecting candidates. Accordingly, we find that the District did not violate FOIA in denying access to these records.

The fact that some of the requested records concern you does not have a bearing on the disclosure of these records. The Superior Court of Delaware has stated "that 'the identity of the requesting party has no bearing on the merits of his/her FOIA request.'" State v. Camden-Wyoming Sewer & Water Auth., 2012 WL 5431035, at *7 (Del. Super. Nov. 7, 2012) (citation omitted). "Under FOIA, a record is public, or it is not." If any other authority permits your access to these records, such a matter is outside the scope of this petition process, which is limited to FOIA claims.

CONCLUSION

For the reasons set forth above, we conclude that the District did not violate FOIA in denying access to the requested records.

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

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Michelle G. Bounds, Attorney for the Cape Henlopen School District