Could Delaware withhold apprentices' names and wages from a public records request because the paperwork was stamped confidential?

Official title

95-IB09 Re: Apprenticeship Documents Under FOIA

Plain-English summary

Delaware's Division of Employment and Training asked whether it could disclose, under the state's Freedom of Information Act, the lists of registered apprenticeship program sponsors, the names of individual apprentices, and where each apprentice fell on the wage progression. The wrinkle was that the Division's own apprenticeship agreement forms carried an official-looking stamp, citing the federal Privacy Act of 1974, saying the information could not be released without the apprentice's written permission. The AG found that the federal Privacy Act didn't actually bind a state agency, and the U.S. Department of Labor confirmed no federal rule required the stamp in the first place. Even so, the AG concluded the stamp still mattered: because it looked official and invoked a specific privacy law, it gave anyone who signed under it a reasonable expectation that their information would stay confidential, and disclosure would therefore invade personal privacy under FOIA's personnel-file exemption. Agreements signed without that stamp, the AG said, would not carry the same expectation, and the Division could release the names and wages on those.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a confidentiality stamp on a Delaware apprenticeship form actually create a legal duty of secrecy?
A: Not directly, according to this opinion. The AG found no state or federal law required the stamp, but concluded the stamp still created a reasonable expectation of privacy in the signer, which was enough to trigger FOIA's personnel-file exemption.

Q: Could the Division release the same kind of apprenticeship information if it removed the confidentiality stamp?
A: According to this opinion, yes. Without the stamp, the AG said the personal-privacy exception would not apply, and names and wage information could be disclosed.

Q: Is disclosing an apprentice's name and wage level generally treated as an invasion of privacy under Delaware law?
A: Not on its own, per this opinion. The AG reasoned that apprentices voluntarily register for a state program and that the public has a legitimate interest in checking that employers are paying legally required wages.

Background and statutory framework

FOIA's declaration of policy at 29 Del. C. § 10001 and the general access rule at § 10003(a) require public records to be open to inspection and copying. Two exemptions were at issue: § 10002(d)(6), for records specifically exempted by other statute or common law, which the AG found did not apply because no law actually required the confidentiality stamp; and § 10002(d)(1), for personnel, medical, or pupil files whose disclosure would invade personal privacy, which the AG found did apply because the stamp created a reasonable expectation of confidentiality. The AG drew on the privacy-protection purpose recognized in Del. Solid Waste Auth. v. News-Journal and the "highly offensive" standard for personal information described in Trombley v. Bellows Falls Union H.S. Dist. (citing Young v. Rice), then weighed that against the apprenticeship program's own statutory purposes under 19 Del. C. §§ 201, 201(2), 203, and 203(a)(10), which support public monitoring of wage compliance.

Citations and references

Statutes:

• 29 Del. C. § 10001, declares FOIA's policy favoring open public records
• 29 Del. C. § 10002(d)(1), exempts personnel, medical, or pupil files whose disclosure would invade personal privacy
• 29 Del. C. § 10002(d)(6), exempts records specifically exempted by other statute or common law
• 29 Del. C. § 10003(a), requires public records be open to inspection and copying
• 19 Del. C. § 201, states the apprenticeship program's statutory purpose
• 19 Del. C. § 201(2), directs safeguarding apprentice welfare through training standards
• 19 Del. C. § 203, governs voluntary registration of apprentices with the state
• 19 Del. C. § 203(a)(10), supports the public interest in verifying wage-rate compliance

Cases:

• Del. Solid Waste Auth. v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984), holding the personnel-file exception exists to protect personal privacy
• Trombley v. Bellows Falls Union H.S. Dist., Vt. Supr., 624 A.2d 857 (1993), defining personal information as details that could cause embarrassment, harassment, or disgrace
• Young v. Rice, Ark. Supr., 826 S.W.2d 252 (1992), cited in Trombley for the same personal-information standard

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/02/13/95-ib09-re-apprenticeship-documents-under-foia/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 95-IB09 (Del.A.G.), 1995 WL 794541 ( finding that individuals who signed apprenticeship agreements containing a confidentiality stamp had a reasonable expectation of privacy and concluding that such agreements were protected from disclosure by the personnel file exemption )

Office of the Attorney General

State of Delaware

Opinion No. 95 – IB09

February 13, 1995

*1 John D. Modica

Director

Division of Employment and Training

Department of Labor

Stockton Building

University Office Plaza

P. O. Box 9499

Newark, DE 19714-9499

Re: Apprenticeship Documents Under FOIA

Dear Mr. Modica:

In your June 8, 1994 letter, you have asked whether lists of registered apprenticeship program sponsors, names of individual registered apprentices, and where on the wage progression an apprentice currently falls are subject to disclosure under Delaware's Freedom of Information Act ("FOIA"). To enable citizens to observe and monitor state government, FOIA grants access to public records. 29 Del. C. section 10001. Public records must be "open to inspection and copying by any citizen of the State." 29 Del. C. section 10003(a).

Twenty-nine Del. C. section 10002(d)(6) states that "[a]ny records specifically exempted from public disclosure by statute or common law" are not subject to disclosure under FOIA. A privacy statement is stamped on each of the Department of Labor's apprenticeship agreements. Citing Privacy Act of 1974-P.L. 93-579, it says that the information may not be disclosed "without the express permission of the undersigned apprentice." At first glance, it appears that 19 Del. C. section 10002(d)(6) applies. However, the Privacy Act of 1974 does not necessarily govern state agencies.

Because the Division of Employment and Training receives federal funds for some of its programs, the federal government can issue certain requirements. If the federal government required that apprenticeship agreements be confidential, then 29 Del. C. section 10002(d)(6) would apply. The United States Department of Labor notified this office that it is "unaware of any legal requirement for this stamp to be on any State apprenticeship agreement." (Copy attached). Therefore, we conclude that 29 Del. C. section 10002(d)(6) does not apply to apprenticeship agreements. For purposes of FOIA, public records do not include:

Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.

29 Del. C. section 10002(d)(1). This exception to the definition of "public record" is "intended for the protection of personal privacy." Del. Solid Waste Auth. v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984). If disclosure of the requested information would constitute an invasion of personal privacy, then FOIA protects the information from disclosure. If the information in the apprenticeship agreements is not subject to the personnel policy exception, then it is a public record and is subject to disclosure. In the present case, although the confidentiality stamp is extraneously applied to the agreements, the stamp on the agreements promises confidentiality. Since the official-looking stamp citing a statute heightens an expectation of privacy, we conclude that disclosure would constitute an invasion of personal privacy under 29 Del. C. section 10002(d)(1).

*2 If the stamp was not on the agreements, then the names and wages could be disclosed under the FOIA. In other words, the personal privacy exception would not be applicable. Information is personal when it includes "'intimate details of a person's life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends.'" Trombley v. Bellows Falls Union H.S. Dist., Vt. Supr., 624 A.2d 857 (1993) (citing Young v. Rice, Ark. Supr., 826 S.W. 2d 252 (1992)).

The information in question (names and salaries) would not be highly offensive to a reasonable individual. An apprentice voluntarily registers with the State. 19 Del. C. section 203. Having knowingly registered with the State under a program designed to aid "in the development and maintenance of a skilled labor force," it is doubtful that an apprentice could successfully allege that release of his or her name and salary was "highly offensive." 19 Del. C. section 201.

The public has an interest in investigating wage rates to ensure that employers are complying with the law. See, e.g., 19 Del. C. section 203(a)(10). One of the purposes of the apprenticeship program is to "[p]rovide for the establishment and furtherance of standards of apprenticeship and training to safeguard the welfare of apprentices and trainees." 19 Del. C. section 201(2). In order to further this policy, the State must police the wage rates. Releasing the names and wage rates to the public would enable the State to advance this statutorily mandated policy.

In sum, being cautious, we advise that the Division of Employment and Training not release information on agreements containing a confidentiality stamp. We conclude that individuals who signed those agreements possess a reasonable expectation of privacy and therefore, the documents fall within the 29 Del. C. section 10002(d)(1) privacy exemption from the FOIA. However, if for future agreements, the Division removed the stamp, names and salaries could be released.

Very truly yours,

Mark H. Conner

Deputy Attorney General

Sherry V. Hoffman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 95-IB09 (Del.A.G.), 1995 WL 794541