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 on a common-law privacy 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." The opinion holds that FOIA does not apply to records specifically exempted from disclosure by statute or common law, that Delaware recognizes a common-law right of privacy, and that legitimate privacy claims must be balanced against the need for access to further government accountability. It concluded that discussions of applicants' qualifications and competencies carry a significant privacy interest that outweighs any minimal public interest, so the records were protected.

The AG also addressed Hamburg's "but they're about me" argument, quoting State v. Camden-Wyoming that "the identity of the requesting party has no bearing on the merits of his/her FOIA request" and that "[u]nder FOIA, a record is public, or it is not." If another authority gave Hamburg access to the records, that was outside the FOIA petition process.

What this means for you

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

The opinion holds that hiring-selection records (emails and correspondence about who was chosen, including evaluators' assessments of candidates' competencies and abilities) are protected by Delaware's common-law right of privacy and are therefore not subject to FOIA. The fact that some of the records concern you does not change that: under FOIA, a record is public or it is not, and the requester's identity does not bear on the request. The opinion adds that if another authority allows access to these records, that route is outside the FOIA petition process.

If you handle hiring for a Delaware public body

For this fact pattern, the opinion treats the District as properly denying access based on the common-law privacy interest, supported by the HR Supervisor's sworn statement describing how the hiring records are stored (in individual candidate files) and what they contain (judgments, scores, and rankings of each candidate's competencies). The opinion frames the analysis as balancing that privacy interest against the public interest in accountability, and finds the privacy interest controlling for applicant-evaluation records.

Common questions

Q: Does 19 Del. C. § 733 give me access to my own application file?
A: The opinion records the District's reliance on Op. 18-IB13 (2018) and § 733 for the point that a personnel file is the property of the employer, and even current employees cannot obtain a copy unless the employer permits. Hamburg argued § 733 did not apply because he was not an employee; the AG resolved the case on common-law privacy rather than the personnel-file rule.

Q: Why doesn't it matter that the records are about me?
A: The opinion quotes State v. Camden-Wyoming, 2012 WL 5431035 (Del. Super. Nov. 7, 2012): "the identity of the requesting party has no bearing on the merits of his/her FOIA request," and "[u]nder FOIA, a record is public, or it is not." Releasing the records to Hamburg would mean releasing them to anyone.

Q: What protected the hiring-selection records from disclosure?
A: The opinion holds they fall within FOIA's exemption for records specifically exempted by statute or common law, because Delaware's common-law right of privacy covers discussions of applicants' qualifications and competencies, and that privacy interest outweighed the minimal public interest in the records.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10005 (Petition for determination)
• 19 Del. C. § 733 (Personnel file access)

Cases:

• State v. Camden-Wyoming Sewer & Water Auth., 2012 WL 5431035 (Del. Super. Nov. 7, 2012), identity of requester irrelevant

Prior AG opinions:

• Del. Op. Atty. Gen. 18-IB13 (2018), 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