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95-IB12: Re: Freedom of Information Act Committee on Massage/Bodywork Practitioners

Written on: March 7th, 1995 in 10002(l) (4) Exemptions - Criminal Files and Criminal Records

Del. Op. Atty. Gen. 95-IB12 (Del.A.G.), 1995 WL 794544 (determining that files of applicants for certification as massage/bodywork practitioners are public records except to the extent such files may contain protected criminal history information or records, which information or records must be removed or redacted prior to disclosure)

Office of the Attorney General

State of Delaware

Opinion No. 95-IB12

March 7, 1995

Re: Freedom of Information Act Committee on Massage/Bodywork Practitioners

*1 Carol Ellis


Civil Division–New Castle County

Division of Professional Regulation

Department of Administrative Services

Silver Lake Office Plaza

Cannon Building

Suite 203

P.O. Box 1401

Dover, DE 19901

Dear Ms. Ellis:

You have asked whether, and to what extent, the public is permitted access to files of applicants for certification filed with the Committee on Massage/Bodywork Practitioners. For the reasons which follow, we conclude that the general information contained therein is subject to public inspection. An applicant’s criminal history statements and records, however, may not be disclosed.

In preparing this opinion, we reviewed the copy of the application you sent with your letter, as well as a copy of the more recent application form, which was previously reviewed by Deputy Attorney General Anne E. Hartnett.

In a prior Attorney General’s Opinion dated November 4, 1987, Opinion No. 87-IO31, the Department of Justice concluded that a licensee’s files with the Division of Alcoholic Beverage. Control was generally subject to public inspection. Nonetheless, that opinion also stated that the criminal record histories contained in those files were not to be disclosed.

The Delaware Freedom of Information Act’s provisions are read liberally in favor of disclosure, whenever possible. Substantively, the Act establishes a public right to inspect all public records maintained by public bodies. 29 Del. C. §§ 10002(d), 10003(a), see also Delaware Solid Waste Authority v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984). Nonetheless, the law provides several exceptions, most of which are clearly “intended for the protection of personal privacy.” Delaware Solid Waste Authority, supra, 480 A.2d at 631 (1984). Records which are specifically recognized as not public include “Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy.” 29 Del. C. § 10002(d)(4). In a Rhode Island case, Providence Journal Co. v. Kane, R.I. Supr., 577 A.2d 661 (1990), the Court held criminal conviction record disclosures violated privacy concerns and rights.

On the other hand, § 10002(d)(4) of the Delaware FOIA permits a person to obtain a copy of their own personal criminal history. This exception to the exception enables the applicant to provide the Committee with the relevant criminal history to show compliance with 24 Del. C. § 5310. (That section prohibits persons convicted of certain crimes from obtaining their certificate.)

As currently structured, the information provided in an application filed with this Committee is generally disclosable. It is not a personnel file. It does not provide privileged financial or commercial information from the applicant, and does not use the applicant’s Social Security number.1 On the other hand, when the application asks the applicant to provide copies of her criminal record, the FOIA’s “criminal record” provisions are implicated.

*2 In our view, therefore, the Delaware FOIA prohibits your Division or the Committee from disclosing the applicant’s criminal history records to those filing FOIA requests for the applications. In other words, the application is disclosable, but the criminal record attachments are not to be disclosed. To the extent an applicant fills out the form with the criminal hisotyr, that form needs to be edited prior to disclosure to others.

If you have further questions regarding this matter, please do not hesitate to contact this office.

Very truly yours,

Frederick H. Schranck

Deputy Attorney General

John K. Welch

Deputy Attorney General




Michael J. Rich

State Solicitor

1 A Federal law prohibits disclosure of Social Security numbers in this context. 


Del. Op. Atty. Gen. 95-IB12 (Del.A.G.), 1995 WL 794544

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