January 10, 2003
Civil Division-Kent County
Mrs. Marion C. Stewart
1912 Marsh Road, Apt. 351
Wilmington, DE 19810-3963
Re: Freedom of Information Act Complaint Against New Castle County
Dear Mrs. Stewart:
Our Office received your Freedom of Information Act (“FOIA”) complaint on October 17,
2002 alleging that New Castle County (“the County”) violated FOIA by not providing you with
information about maintenance corporations registered with the County.
By letter dated October 10, 2002, the County agreed to provide you with “the names of all
of the maintenance corporations registered with the Office of Community Governing as this
information is a public record.” The County would not provide you with the “names, addresses, or
telephones for the President or other contact persons” on the ground of personal privacy.
By letter dated October 21, 2002, we asked the County to respond to your complaint. We
received the County’s response on October 30, 2002. By letter dated October 31, 2002, we asked
the County for additional information, which we received on November 6 and 13, 2002. We also
reviewed public information on file at the Division of Corporations.
FOIA requires that “[a]ll public records shall be open to inspection and copying by any
citizen of the State during regular business hours by the custodian of the records for the appropriate
public body.” 29 Del. C. § 10003(a).
FOIA does not require disclosure of any “records specifically exempted from public
disclosure by statute or common law.” Id. § 10002(d)(6).
A. Maintenance Corporations
The County Code requires approval of a maintenance declaration for the open spaces and
other common facilities in residential developments. See Newtowne Village Service Corp. v.
Newtowne Road Development Co., Del Supr., 772 A.2d 172 (2001). “Prior to the conveyance of
the first Lot to any Owner, Declarant shall incorporate under the laws of the State of Delaware . . .
a nonprofit corporation to be known as a ‘maintenance corporation’ for the benefit of all Owners.
NCCC § 20-70(c)(1).
A maintenance corporation must register with the County in order “to contact the
maintenance corporation to forward the stormwater management facility annual report and to inform
communities of upcoming workshops and events.” NCCC § 40.27.610. The registration form must
include the “names, addresses, and telephone numbers of the board of directors and any officers of
the maintenance corporation.” Id. A maintenance corporation must also provide the County with
copies of its maintenance declaration, certificate of incorporation and bylaws, any amendments to
those governing documents, and minutes of any annual or special meeting. Id. A maintenance
corporation that is not registered with the Office of Community Governing “shall not be eligible for
County assistance with stormwater management facility sediment clean out and replacement of
structural components.” NCCC § 40.27.620.
The County provided us with copies of 20 sample Community Registration forms. The
forms distinguish between two kinds of information: business information about the maintenance
corporation (“Name of Organization” and “Mailing Address”); and personal information about the
corporation’s president (name, address, home phone, work phone). In some instances, the
president’s residential address and the mailing address for the corporation are the same, so that the
County uses the residential address as the address of record for mailings to the corporation. In most
of the forms we reviewed, the maintenance corporation uses a post office box as the business
address. To avoid any confusion, we will refer to the address given for the corporation (be it a
separate business address, or the president’s home address) as the “contact address.”
B. Informational Privacy
The legal issue raised by your complaint is whether the name, contact address, and telephone
number of the president of a maintenance corporation registered with the County are exempt from
disclosure by common law.
The courts in Delaware have recognized a common law right of informational privacy. See
Board of Education of Colonial School District v. Colonial Education Association, Del. Ch., Civ.A.
No. 14383 (Feb. 28, 1996) (Allen, C.), aff’d, Del. Supr., 685 A.2d 361 (1996). Our Office has
determined that the common law right of informational privacy protects the names and addresses of
persons applying for a business license with the Division of Revenue, see Att’y Gen. Op. 96-IB33
(Dec. 11, 1996), and the names and addresses of apprentices registered in a training program with
the Department of Labor, see Att’y Gen. Op. 98-IB07 (July 28, 1998). We emphasized in those
opinions that the legal analysis is fact-specific, so we must balance the public interest in disclosure
of the information you requested, with the right to individual privacy.
The core purpose of FOIA is to is to “further the citizens’ right to be informed about what
their government is up to.” Sheet Metal Workers International Association v. United States
Department of Veterans Affairs, 135 F.3d 891, 903 (3rd Cir. 1998). In Sheet Metal Workers, the
union made a FOIA request for the names and home addresses of employees of private contractors
doing business with the Veterans Administration to monitor compliance with the federal minimum
wage schedules. The Third Circuit held that the “release of names, addresses, and similar ‘private’
information reveals little, if anything, about the operations of the Department of Veterans Affairs.”
135 F.3d at 903. On the other side of the balance are the “significant privacy concerns attached to
the home and employees’ interest in avoiding a barrage of unsolicited contact.” Id. at 904. “It is
possible that the information requested may be misappropriated by marketers, creditors, solicitors,
and commercial advertisers, eroding the employees’ expectation of privacy.” 135 F.3d at 905.
1. Privacy Interests
Unlike the union members in Sheet Metal Workers, “[a] corporation, partnership, or
unincorporated association has no personal right of privacy.” Restatement (Second) of Torts § 6521,
Comment C. Disclosing the name and business address of a maintenance corporation does not
implicate any personal privacy rights. We also believe that the names of the officers of a
maintenance corporation are subject to FOIA because those names are a matter of public record with
the Division of Corporations.
The County Code requires each maintenance corporation to provide the name of the president
and an address of record to be able “to contact the maintenance corporation to forward the
stormwater management facility annual report and to inform communities of upcoming workshops
and events.” NCCC § 40.27.610. The president of a maintenance corporation has little expectation
of privacy in his or her name or contact address given to the County, even if the president uses his
or her residential address as the contact address.
In Lorig v. Medical Board of California, 78 Cal.App.4th 462, 468 (2000), the Medical Board
of California notified all doctors that it would be posting their names and addresses of record on the
Board’s website. Doctors who worked for government agencies objected because they did not have
regular mail delivery at their workplace and so used their home address as the address of record
required by the Medical Board. The California Court of Appeal held that posting the home address
of record would not violate the doctors’ personal privacy. “Once a physician elects to designate a
home address as his or her address of record, . . . the Board is justified in treating it as public record
information.” 78 Cal.App.4th at 468. The court observed that the doctors had several options to
protect their privacy, such as using a “post office box number.” Id. at 466.
We find that any personal privacy interest in the name and contact address of the president
of a maintenance corporation is de minimis. We now balance the competing public interest in
2. Public Interest
According to your complaint, one of the reasons for your FOIA request is to help the New
Castle County Civic League to monitor the County’s management of stormwater facilities. We
believe that the ability to contact the presidents of maintenance corporations by mail may help
citizens better understand this operation of County government, at least in an indirect way. In the
federal FOIA case law, this is called a “derivative use” of names and addresses, which do not, in
themselves, reveal anything about how well government is working.
In Sheet Metal Workers, the union argued that by contacting the employees of federal
contractors at home the union could obtain information to match with payroll records to monitor
compliance with the minimum wage laws. The Third Circuit was skeptical that this derivative use
would contribute “significantly to public understanding of the operations or activities of
government.” 135 F.3d at 903. The Third Circuit acknowledged that “monitoring government
operations to some degree falls within the scope of public interest” but did not outweigh the
“significant privacy concerns attached to the home.” Id. at 903, 904.
In Kurzon v. Department of Health & Social Services, 2001 WL 821531 (D.N.H., July 17,
2001), a citizen (Kurzon) made a FOIA request to the National Institute of Health for information
about applicants denied federal grants for medical research. NIH provided the names and addresses
of the institutions applying for a grant, but withheld the names and business addresses of principal
investigators on the ground of privacy. Kurzon argued that their names and business addresses
“would allow the public to assess the review process by contacting” the private investigators “and
developing further information about the application and review process from them.” 2001 WL
821531, at p.9.
The federal district court distinguished Sheet Metal Workers because “Kurzon seeks the
names and business addresses of unsuccessful applicants, not their home addresses.” 2001 WL
821531, at p.10. The court found “that rejected applicants have something more than a de minimis
privacy interest in that information but something less than a significant interest.” Id. at p.9. The
court balanced that privacy interest with the interest in “public investigation into NIH’s application
review process.” Id. The court concluded that “neither the privacy interest nor the public interest
is particularly compelling” and “the balancing process leaves the interests at near equipoise.” Id. at
p.11. In that situation, the “dominant objective” of FOIA — “disclosure, not secrecy” must prevail.
We find that the president of a maintenance corporation has a minimal privacy interest in his
or her name as the officer of a public corporation, or in the contact address provided to the County
for mailings, even if that contact address is the president’s home address. Balanced against that
minimal privacy interest is a cognizable public interest in monitoring the County’s operation of
stormwater facilities. Based on the record before us, we find that the balance under FOIA tips in
favor of disclosure of the name of the president and contact address.
The registration form for maintenance corporations does not require the corporation to list
a business telephone number. Most of the corporations do not appear to have a business telephone
number, relying instead on a post office box to receive mailings. Unlike contact mailing addresses,
the home and work telephone number of a maintenance corporation president involve significant
privacy concerns “The short, though regular, journey from mail box to trash can
. . . is an acceptable burden.” Boger v. Youngs Drug Products Corp., 463 U.S. 60, 72 (1983).
Unwanted telephone calls at home or work, on the other hand, are very intrusive. The names and
contact addresses for the presidents give you “alternative, less intrusive, methods” to obtain
information from maintenance corporations, Sheet Metal Workers, 135 F.3d at 904. The presidents’
telephone numbers are not necessary to further the public purpose of your request.
For the foregoing reasons, we determine that the County did not violate the open records
requirements of FOIA by denying you access to the home and work telephone numbers of the
presidents of maintenance corporations registered with the County. We determine that the names
of the presidents and the contact address for each corporation are public information under FOIA.
The County is to provide you with that information within ten days of the date of this letter, and
report back to our Office in writing when it has done so.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Scott G. Wilcox, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator