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10002l-epersonnel

95-IB09 Re: Apprenticeship Documents Under FOIA

Written on: February 13th, 1995 in 10002(l) (1) Exemptions - Personnel

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. 95IB09

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


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