OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 13-IB03
July 12, 2013
VIA EMAIL AND REGULAR MAIL
Mr. Andrew Staub
City Reporter, The News Journal Co.
950 West Basin Road
New Castle, DE 19720
Re: FOIA COMPLAINT AGAINST CITY OF WILMINGTON (SECURITY DETAIL)
Dear Mr. Staub:
By petition received March 12, 2013, you asked this Office to determine whether the City of Wilmington (the “City”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), by redacting from certain documents the names of those individuals who applied for or who were assigned to the security detail for Mayor Dennis P. Williams (the “Mayor”) and by failing to produce vehicle records and travel-related invoices reflecting the expenses associated with the security detail.1 For the reasons discussed below, we determine, based on the unique facts presented in this case, that the City did not violate FOIA as it relates to the security detail redactions. We are unable to determine from the record whether the City has produced all vehicle records and travel receipts requested by TNJ. We request that the parties provide a status report and work with this Office to resolve any remaining issues with respect to those records.
On January 29, 2013, petitioner, a reporter with The News Journal Co. (“TNJ”), requested from the City various documents relating to the members of and expenses associated with the Mayor’s executive protection security detail (the “Security Detail”), which is staffed by active members of the Wilmington Police Department. The petition specifically asked for:
• informational bulletins announcing opportunities for reassignment to the Security Detail (the “Bulletins”);
• written responses to the Bulletins submitted by those officers interested in being considered for reassignment to the Security Detail (the “Written Responses”);
• notices of reassignment sent to officers selected for the Security Detail (the “Reassignment Notices”);
• payroll and employment records reflecting the names, ranks, salaries and previous assignments of the reassigned personnel (the “Employment Records”);
• correspondence between the Mayor’s office and the police department regarding reassignments;
• accounts payable and similar records reflecting the purchase of vehicles for the Mayor and the Security Detail (the “Vehicle Records”); and
• receipts and other documents reflecting the costs of travel conducted by the Mayor and his Security Detail (the “Travel Receipts”).
In mid-February 2013, the City’s counsel informed petitioner that the City was still compiling and reviewing documents and indicated that there would be a slight delay in providing responsive documents. On March 12, 2013, having yet to receive any documents from the City, petitioner sought our intervention in this matter by instituting the instant FOIA appeal.
By letter dated March 26, 2013, the City provided TNJ with approximately 42 pages of responsive documents, including documents reflecting the ranks, salaries and previous assignments of the five officers initially assigned to the Security Detail.2 The City redacted the names of the reassigned officers from various documents based on officer security and privacy concerns. The City also redacted the names of the unsuccessful officer-applicants from their Written Responses based on privacy concerns.
On April 1, 2013, in response to the City’s production, petitioner amended his complaint and narrowed the parties’ FOIA dispute to three principal issues: (1) whether the City was justified in redacting the names of the officers selected for the Security Detail from their Written Responses, the Reassignment Notices and the Employment Records; (2) whether the City was justified in redacting the names of the officers who submitted Written Responses, but who did not get selected for reassignment; and (3) whether the City has produced all responsive Vehicle Records and Travel Receipts. On April 26, 2013, the City submitted a formal response (the “Response”).
The City asserts that the redaction of the Security Detail members’ names from their Written Responses, the Reassignment Notices and the Employment Records was justified under one or more of the security-related exemptions set forth in FOIA § 10002(l)(17)(a). We need not and do not make a determination with respect to the applicability of those exemptions as we find that the City was justified in redacting the names of the Security Detail members to protect their personal privacy. Based on similar privacy concerns, we also conclude that the City was justified in redacting the names of the unsuccessful officer-applicants who submitted Written Responses. The record is unclear with respect to whether the City has provided all responsive Vehicle Records and Travel Receipts.
A. The City Was Justified in Withholding the Names of the Security Detail Members.
The City redacted the names of the Security Detail members from the members’ Written Responses, the Reassignment Notices and the Employment Records. To justify those redactions, the City has invoked FOIA § 10002(l)(1). That provision exempts from the definition of “public record” any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy under FOIA or any other Delaware or federal law as it relates to personal privacy. See 29 Del. C. § 10002(l)(1). We conclude that the redactions were permitted under FOIA § 10002(l)(1) and appropriate to protect the privacy rights of the Security Detail members under applicable law.
As a threshold matter, we note that the members’ Written Responses, the Reassignment Notices and the Employment Records appear to be the type of documents that would be maintained as part of an employee’s “personnel” file. See Att’y Gen. Op. 02-IB24 (Oct. 1, 2002) (“A ‘personnel file’ is ‘a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to such other traditional personnel actions.’”). Thus, all references to the identities of the Security Detail members in those documents may qualify for exemption and redaction under FOIA § 10002(l)(1) if disclosure would constitute an invasion of personal privacy under Delaware or federal law.3 We conclude it would.
In Reardon v. News-Journal Co., the Delaware Supreme Court first addressed, but did not determine, whether Delaware law recognizes a right of privacy, the invasion of which may give rise to an action sounding in tort. See Reardon, 164 A.2d 263, 266 (1960). The Reardon court observed that the right of personal privacy has been defined, among other things, as the publicizing of a person’s affairs in which the public has no legitimate concern. Reardon, 164 A.2d at 266. Several years later, in Barbieri v. News-Journal Co., the Delaware Supreme Court recognized a common law right of privacy and held that a violation of that right may be actionable under Delaware tort law. Barbieri, 189 A.2d 773, 774 (1963).
Delaware’s common law right of privacy is not an absolute right. See Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 714 (Del. Super. 1967); Att’y Gen. Op. 10-IB09 (Sept. 2, 2010) (“Delaware has not created a per se right to privacy in one’s name and address.”). Rather, in the tort context, it is a qualified right, the recognition and protection of which depends upon the circumstances and the rights of others, including the press. See Guthridge, 239 A.2d at 714. Similarly, in 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. See Att’y Gen. Op. 10-IB09.
Federal common law also recognizes a right of personal privacy. See U.S. Dep’t of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 763 (1989). The right under federal common law “encompasses the individual’s control of information concerning his or her person.” Id. at 765 n.17 (“Privacy is the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others.”). Federal courts addressing privacy rights under similar provisions of the federal Freedom of Information Act, 5 U.S.C. § 552 (the “Federal Act”), are required to balance the public interest in disclosure of the responsive information against the privacy interests in such information. See Reporters Comm., 489 U.S. at 776; Neely v. F.B.I., 208 F.3d 461, 463-464 (4th Cir. 2000); Dorsett v. U.S. Dept. of Treasury, 307 F.Supp.2d 28, 38 (D.D.C. 2004).
In addressing the competing interests at issue in this case, we begin with the asserted privacy rights. The City maintains that the members of the Security Detail, as law enforcement personnel, have privacy interests in protecting their identities because disclosure could subject them to potential harassment or danger in the conduct of their official duties and personal affairs. In support, the City cites Moore v. Bush, 601 F.Supp.2d 6 (D.D.C. 2009), a decision decided under the Federal Act and involving Exemption 6, which closely resembles the personnel exemption under Delaware’s FOIA.4 In that case, an individual filed a complaint under the Federal Act against numerous federal agencies. Plaintiff alleged that he was “implanted with a micro-chip” for the purpose of controlling his brain and that he was the victim of a conspiracy to develop and use brainwave technology for warrantless surveillance. Moore, 601 F.Supp.2d at 9. The plaintiff initially sought access to records related to such alleged brainwave technology and surveillance from the Federal Bureau of Investigation (the “FBI”). The FBI located two potentially responsive documents and produced them after redacting the name of an FBI Special Agent (who previously interviewed the plaintiff) pursuant to, among other things, Exemption 6. On appeal, the district court held that, as a general proposition, government employees, especially law enforcement personnel, have privacy interests in protecting their identities because disclosure “could subject them to embarrassment and harassment in the conduct of their official duties and personal affairs.” Moore, 601 F.Supp.2d at 14. The court approved the FBI’s redactions under Exemption 6 after finding that the balance weighed in favor of nondisclosure. Id. Notably, the plaintiff did not articulate any public interest that would be served by disclosure of the FBI Special Agent’s name. Id.
The Moore decision is not binding on us and is readily distinguishable. That case involved a disclosure request designed to further a private individual’s “speculative” claims about a conspiracy to develop and use brainwave technology for warrantless surveillance. In finding that disclosure would serve no public interest whatever, the court discounted the plaintiff’s incredible claims completely. This case does not involve far-fetched conspiracy theories. It involves a news organization seeking information about the salary-related and other costs associated with the Security Detail. It also involves a request for information about the Security Detail selection process to permit TNJ to investigate and rule out possible cronyism or patronage. These are potentially valid public interests. That said, as discussed below, we are not persuaded that public disclosure of the Security Detail members’ names is necessary or appropriate to further such public interests.
In balancing the competing interests in this case, we first address whether the members of the Security Detail have personal privacy rights that may be invaded by the disclosure of their names. We believe it appropriate in this case to adhere to the generally accepted rule under the Federal Act that law enforcement personnel have substantial privacy interests in protecting their identities. See Moore, 601 F.Supp.2d at 14; see also Neely, 208 F.3d at 464-465 (holding that FBI agents, government employees, suspects and other third parties have “well-recognized and substantial privacy interests” in the nondisclosure of their names and other personal information); Dorsett, 307 F.Supp.2d at 38-39 (observing that names of Secret Service special agents, FBI agents and local law enforcement personnel are routinely considered exempt).5 Next, we find, and therefore agree with the City, that disclosure of the Security Detail members’ names could infringe on their privacy rights by subjecting the members to embarrassment or harassment in the conduct of their official duties or personal affairs.
On the public interest side, TNJ has raised two facially plausible concerns. First, TNJ points to the public’s interest in the cost of the Security Detail. We agree that, as a general matter, the public has a substantial interest in knowing how much taxpayer money has been or which may be spent on compensation for the Mayor’s Security Detail and in knowing whether particular members of the Security Detail are receiving excessive compensation. Based on the record in this case, however, we think that any compensation-related concerns TNJ may have with respect to the Security Detail have been addressed adequately by the records produced in this case. The City previously provided TNJ with a chart reflecting, on an anonymous basis, year-to-date base salary and overtime expenses for each member of the Security Detail.6 TNJ should have a fairly clear picture of the salary-related expenses associated with the Security Detail.7 We do not think TNJ needs access to the names of the Security Detail members to report those findings to the public.
Second, TNJ points to the public’s interest in ensuring the fairness and propriety of the selection process for the members of the Security Detail. TNJ suggests the possibility of cronyism or patronage. While the public certainly has legitimate and substantial interests in knowing whether political hangers-on or supporters were selected for government jobs without due regard for their qualifications, we see no evidence of that in this case. The City provided TNJ with copies of the Written Responses, which contain, in varying degrees of detail, statements about the officers’ experience, training and other job qualifications. Most of the Written Responses appear to reflect handwritten notes and recommendations from persons involved in the candidate evaluation and selection processes. We see no evidence in the record before us that any member of the Security Detail lacks the minimum qualifications necessary for the job, or that the evaluation and selection processes were merely shams or otherwise tainted.
We are not persuaded that TNJ needs access to the Security Detail members’ names to rule out possible cronyism or patronage or other serious concerns with the evaluation and selection processes.
Based on the foregoing, we find that the Security Detail members’ privacy interests outweigh whatever interest the public may have in the disclosure of the members’ identities.8 Accordingly, we conclude that the redaction of the Security Detail members’ names was appropriate under the circumstances.
B. The City Was Justified in Withholding the Names of the Unsuccessful Applicants.
The City also was justified in redacting the names of those officers who submitted Written Responses, but who were not assigned to the Security Detail. Those officers do not have the same privacy concerns as the Security Detail members, but they do have substantial privacy interests at stake — namely, public disclosure of their unsuccessful attempts to be appointed to the Security Detail.
The Written Responses submitted by the unsuccessful applicants are precisely the type of personnel-related records that FOIA § 10002(l)(1) was intended to protect from disclosure. The Written Responses were submitted in response to the Bulletin and are expressions of interest by the officers in being appointed to the Security Detail. The Written Responses highlight the officers’ experience, training and other job qualifications and appear to function as formal applications for special assignment. The disclosure of the Written Responses could reveal officers’ unsuccessful attempts to be appointed to the Security Detail and may subject the applicants to embarrassment or humiliation. We see no compelling reason to expose the unsuccessful applicants to such risks.
Though we acknowledge the public’s interest in ensuring the fairness and propriety of the evaluation and selection process for the members of the Security Detail, we have rejected, based on the documents produced to date by the City, TNJ’s assertion that it needs access to the Security Detail members’ names to rule out irregularities or improprieties with those processes. The same rationale pertains with equal force to the unsuccessful applicants. The public’s interest in the identities of the unsuccessful applicants is negligible.
Upon balancing the competing private and public interests at play here, we conclude that disclosure of the unsuccessful applicants’ names would constitute an invasion of their personal privacy interests. Redaction of the unsuccessful officer-applicants’ names was appropriate.
C. The Record is Unclear as to Whether the City has Produced All Responsive Vehicle Records and Travel Receipts.
Petitioner asserts that the City has failed to produce all responsive Vehicle Records and Travel Receipts. With respect to the Vehicle Records, petitioner initially sought all records relating to the purchase of vehicles for the Security Detail. The City responded that no vehicles were purchased specifically for the Security Detail. According to the Response, the two SUVs being used by the Security Detail already were in the City’s inventory and “simply were transferred from the Wilmington Police Department’s car pool to the [S]ecurity [D]etail.” (Resp., p. 5.) The City agreed in the Response to provide the invoices related to the vehicles that were transferred to the Security Detail. The record is unclear as to whether the invoices and other responsive documents have been provided to TNJ.
As to the Travel Receipts, petitioner initially requested all receipts reflecting the cost of travel conducted by the Mayor and the Security Detail. The City responded by providing TNJ with Travel Receipts reflecting only $19.82 in tolls for two vehicles. Petitioner questions whether all responsive documents have been produced by the City in light of the fact that the Mayor and the Security Detail have traveled abroad on official business. Petitioner seeks additional documents reflecting gasoline use, lodging, parking and meals for the Mayor and any members of the Security Detail who accompanied him. The City did not address this issue in the Response, and we do not know if the City has produced additional Travel Receipts to TNJ.
All of the Vehicle Records and Travel Receipts requested by petitioner are public documents. TNJ is entitled to receive all such records, and the City has a duty to search for and produce them. Given that we are unsure whether and to what extent the City has produced additional documents to TNJ during the pendency of the FOIA petition, we request that the parties provide us with a status report (whether jointly or separately) within ten (10) business days from the date this determination issues. We will thereafter work with the parties to ensure that TNJ receives all of the documents to which it is entitled.
For the foregoing reasons, we conclude that the City was justified in redacting the names of the Security Detail members from the members’ Written Responses, the Reassignment Notices and the Employment Records under the personnel file exemption in FOIA § 10002(l)(1). We also conclude, again based on FOIA § 10002(l)(1), that the City was justified in redacting the names of the unsuccessful officer-applicants from their Written Responses. We make no determination with respect to the Vehicle Records and the Travel Receipts and request that the parties provide a status report and work with this Office to resolve any remaining issues relating to those documents.
Very truly yours,
Jason W. Staib
Deputy Attorney General
/s/Allison E. Reardon
Allison E. Reardon
cc: Martin C. Meltzer, Assistant City Solicitor (via email)
FOIA Opinion Distribution List (via email)
1 The City is a “public body” within the meaning of FOIA. See 29 Del. C. § 10002(h). As such, the City is subject to the “open records” provisions of FOIA. See 29 Del. C. § 10003.
2 The record reflects that the number of officers assigned to the Security Detail has been reduced to four.
3 We interpret the reference to “any State or federal law” in 29 Del. C. § 10002(l)(1) as inclusive of both statutory law and the common law.
4 Exemption 6 permits a federal agency to withhold from disclosure “personnel and medical files” if disclosure “would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The corresponding FOIA statute exempts personnel files, the disclosure of which “would constitute an invasion of personal privacy.” 29 Del. C. § 10002(l)(1). The reference to “clearly unwarranted” in the Federal Act indicates that a balancing of private rights against public rights is required. See Reporters Comm., 489 U.S. at 776. Though Delaware’s FOIA does not expressly include the “clearly unwarranted” language, the same balancing test has been applied in determining rights under FOIA given the qualified nature of privacy rights under Delaware common law. See Att’y Gen. Op. 10-IB09.
5 We note that Neely and Dorsett both were decided under Exemption 7(C) of the Federal Act, which, similar to Exemption 6, permits federal agencies to withhold documents or redact information contained in law enforcement files if disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
6 This Office previously granted TNJ with access to the names and salary information for all Wilmington police officers, including the members of the Security Detail, in accordance with our prior determination in Att’y Gen. Op. 12-IIB10 (July 27, 2012) (“[B]ecause the compensation records of Wilmington police officers are public records in the custody of the City and because no exemptions from disclosure apply, the City’s refusal to disclose those records to the requestor violates FOIA.”). That opinion reflects a fundamental policy-based determination that the public’s interest in knowing the salaries of persons paid with public funds typically outweighs any privacy interest an employee may have in such information. See Gannett Co., Inc. v. Christian, Civ. A. 82M-DE-26, 1983 WL 473048, *1 (Del. Super. Aug. 19, 1983); Att’y Gen. Op. 12-IIB10. That presumption does not apply where, as here, the public employees in question have valid and unique privacy interests in the nondisclosure of their names.
7 We note that TNJ has not pointed to any irregularities or other concerns with respect to the salary information it received.
8 We note that petitioner asserts that the City waived its right to redact the names of the members of the Security Detail by virtue of certain press releases that apparently disclosed the names of one former and one current member of the Security Detail. We previously have suggested that a public body might waive FOIA exemption rights through voluntary public disclosure. See Att’y Gen. Op. 09-IB06 (June 9, 2009). The City has described the disclosures as “inadvertent.” (Resp., p. 2, n.1.) We accept the City’s explanation and therefore do not find in this case a knowing or intentional waiver of FOIA exemption rights. In any event, we would be hesitant to find a waiver of FOIA rights in this case because of the effect such finding may have on the rights of third parties.