Del. Op. Atty. Gen. 96-IB33 (Del.A.G.), 1996 WL 751553
(determining that Delaware courts would embrace balancing test for disclosure of names and addresses of business license holders and finding that balance weighed in favor of non-disclosure where request, on its face, was for personal or commercial gain, not to further FOIA policies of transparency or government accountability)
Office of the Attorney General
State of Delaware
Opinion No. 96-IB33
December 11, 1996
Re: Freedom of Information Act Disclosure of Names and Addresses of Business License Holders
*1 The Honorable Wayne A. Smith
House of Representatives
State of Delaware Legislative Hall
Dover, DE 19903
Dear Representative Smith:
By letter dated October 17, 1996 you asked for an Attorney General’s opinion as to whether the names and addresses of Delaware business license holders constitute public records under the Freedom of Information Act, and therefore are subject to disclosure.
Section 2101 of Title 30 of the Delaware Code provides: “No person shall engage in or carry on any trade or business for which a license is required by this part without first having obtained a license therefor from the Department of Finance and paid therefor the fee or tax prescribed in this part.” The Division of Revenue publishes a form (FORM CRA Rev. 1/95) application to register for a business license. The completed application must contain the name, address, social security number, and other information regarding the applicant. The hard copy applications are maintained by the Division for five years. Some of the information (addresses and business codes) is put into a computer data base to use for mailing lists.
SUMMARY OF OPINION
We conclude that, as a general rule, the names and addresses of the holders of business licenses are exempt from disclosure by a common law right of privacy. In certain situations, the balance between a private right of informational privacy may be outweighed by the public interest in disclosure, but only if disclosure will contribute significantly to public understanding of the operations or activities of government, as opposed to the commercial interest of the requestor. We find it difficult to conceive of a situation in which the reason for requesting the names and addresses of business license holders would be for any purpose other than the commercial interest of the requestor.
The Delaware Freedom of Information Act, 29 Del. C. Sections 10001–10005 (“FOIA”), provides 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. Section 10003(a). Section 10002(d) defines “public record” as “information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded, or produced.”
29 Del. C. Section 10002(d) sets forth fourteen categories of records which are exempt from disclosure. Subsection (d)(6) exempts “[a]ny records specifically exempted from public disclosure by statute or common law.” There is no statute that exempts the names and addresses of the holders of business licenses from disclosure. The Delaware courts, however, have recognized “a common law right” of informational privacy. Board of Education of Colonial School District v. Colonial Educational Association, Del. Ch., 1996 WL 104231, at p. (Feb. 28, 1996) (Allen, C.). See also News-Journal Co. v. Billingsley, Del. Ch., 1980 WL 3043 (Nov. 20, 1980) (Harnett, V.C.) (registered engineers have a “right of privacy” to personal information supplied to their trade association). The courts “will be required on a case by case basis to resolve the balance between legitimate privacy claims and the need for access” to public information. Colonial, 1996 WL 104231, at p. 8.
*2 The federal Freedom of Information Act, 5 U.S.C. Section 552, exempts nine categories of documents from the statute’s disclosure requirements, including “files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. Section 552(b)(7)(C). Delaware’s FOIA does not have such a general exception for personal privacy; however, imbued throughout the Delaware FOIA is a legislative concern with privacy interests. For example, Section 10002(d)(1) exempts disclosure of “[a]ny 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.” Subsection (d)(4) exempts disclosure of “[c]riminal files and criminal records, the disclosure of which would constitute an invasion of personal property.” Subsections (7), (11) and (12) exempt disclosure of records which identify contributors to charity, holders of a permit to carry a concealed deadly weapon, and public library users.1
The United States Supreme Court has recognized a federal constitutional right of informational privacy. “One element of privacy has been characterized as ‘the individual interest in avoiding disclosure of personal maters ….” Nixon v. Administrator of General Services, 433 U.S. 425, 457 (1977) (quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)). For many years, the Supreme Court has expressed concern about privacy rights in the computer age.
We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed.
Whalen v. Roe, 429 U.S. at 605.
Courts in other states have looked to federal case law in interpreting their FOIA statutes because the purposes of the state and federal laws “are virtually identical.” City of New Haven v. Freedom of Information Commission, Conn. Supr., 535 A.2d 1297, 1301 n. 8 (1988). See also, Cooper v. Department of the Lottery, Ill. App., 640 N.E.2d 1299, 1303 (1994); Indiana Civil Liberties Union v. Indiana General Assembly, Ind. App., 512 N.E.2d 434, 434 (1987); Bredemier v. Kentwood Board of Education, Mich. App., 291 N.W.2d 199, 200 (1980); Heat Corp. v. Hoppe, Wash. Supr., 580 P.2d 246, 2 (1978). The federal statute “provides a good standard to effectuate the balance of interests required.” Lodge v. Knowlton, N.H. Supr., 391 A.2d 893, 895 (1978).
In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), a group of reporters filed a request under the federal Freedom of Information Act for “rap sheets” compiled by the Federal Bureau of Investigation. The FBI claimed that the documents were exempt from disclosure because it “could reasonably be expected to constitute an unwarranted invasion of privacy.” 5 U.S.C. Section 552(b)(7)(C). The United States Supreme Court observed that “both the common law and the literal understandings of privacy encompass the individual’s control of information concerning his or her person.” 489 U.S. at 763. Whether disclosure of a private document is warranted “must turn on the nature of the requested document and its relationship to ‘the basic purpose of the Freedom of Information Act to open agency action to the light of public scrutiny.”’ Id. at 772 (quoting Department of Air Force v. Rose, 425 U.S. 352, 372 (1976). The Freedom of Information Act “focuses on the citizens’ right to be informed about ‘what their government is up to.”’ Id. at 773. “That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct. In this case — and presumably in the typical case in which one private citizen is seeking information about another — the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records.” Id.
*3 As for the FBI’s rap sheets, “there is undoubtedly some public interest in anyone’s criminal history, especially if the history is in some way related to the subject’s dealing with a public official or agency. The FOIA’s central purpose is to ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the Government be so disclosed. Thus, it should come as no surprise that in none of our cases construing the FOIA have we found it appropriate to order a Government agency to honor a request for information about a particular private citizen.” 489 U.S. at 774.
In Wine Hobby USA, Inc. v. United States Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974), a wine making company requested that the Bureau of Alcohol, Tobacco and Firearms provide it with the names and addresses of persons who had a permit to make wine in their homes. The Third Circuit held that the balance tipped heavily in favor of non-disclosure. “[T]here are few things which pertain to an individual in which his privacy has traditionally been more respected that his own home.” 502 F.2d at 136. The sanctity of the home “will be subjected to unsolicited and possibly unwanted mail from Wine Hobby and perhaps offensive mail from others.” Id. at 137. In contrast, Wine Hobby advanced “no direct or indirect public interest” in disclosure of these lists “and indeed, we can conceive of none. The disclosure of names of potential customers for commercial business is wholly unrelated to the purposes behind the Freedom of Information Act ….” Id.
In Professional Programs Group v. Department of Commerce, 29 F.3d 1349 (9th Cir. 1994), a company that offered preparation courses to lawyers sitting for the patent bar examination requested the names of patent bar applicants. The Ninth Circuit observed that “FOIA ‘was not intended to require release of otherwise private information to one who intends to use it solely as personal gain.”’ 29 F.3d at 1354 (quoting Minnis v. United States Department of Agriculture, 737 F.2d 784, 787 (9th Cir. 1984)). Although the company argued that “its interest is not purely commercial” in that it planned “to use the information to assist the Patent Office in improving the exam,” the company “introduced no evidence showing how it will accomplish that goal.” 29 F.2d at 1354. Compare Dobronski v. FCC, 17 F.3d 275, 278 (9th Cir. 1994) (publisher of a trade journal had a public as well as a commercial interest in investigating whether government officials were using sick leave to take unauthorized paid vacations). “Because the private and public interests asserted by Professional Programs are entitled to no weight, those interests are easily outweighed by the degree of the invasion into personal privacy. Individuals whose names along with other personal information are listed in government files have a privacy interest in such information.” 29 F.3d at 1354.
*4 Following the Supreme Court’s lead, the federal circuit courts of appeal have repeatedly held in recent years that the privacy interest in one’s name and address outweighs any public interest in disclosure. See, e.g., Minnis, supra (interest of owner of lodge on scenic river in advertising his business did not outweigh privacy interest of applicants for permits to travel on the river); Multnomah County Medical Society v. Scott, 825 F.2d 1410 (9th Cir. 1987); Federal Labor Relations Authority v. United States Department of Veteran’s Affairs, 958 F.2d 503 (2d Cir. 1992). We believe that the courts in Delaware, if presented with the issue, would embrace this balancing of private and public interests in favor of non-disclosure of names and addresses of the holders of business licenses.
It is our opinion that when a request for information or records does not, on its face, appear to further the purposes of FOIA to assure that the public processes and records of government are open, requests such as those for the names and addresses of private individuals may be refused by the state agency receiving the request under 29 Del. C. Section 10002(d)(6). This opinion is consistent with previous opinions of the Attorney General’s Office recognizing an individual’s right to informational privacy, unless the personal information is requested to further the purposes of FOIA. See Opp. Atty. Gen. 96-IB13 (May 6, 1996) (salary information for city and town employees disclosable under FOIA); Opp. Atty. Gen. 95-IB13 (Mar. 20, 1995) (teachers’ salaries disclosable); Opp. Atty. Gen. 84-I005 (Feb. 13, 1984) (disclosure of financial interests of relatives of public officers).
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
|1||Another indication of the strong public policy in favor of personal privacy in government records is the recently enacted Privacy Act Governing the Release of Motor Vehicle Driving History and License Records which prohibits the Division of Motor Vehicles from disclosing personal information except for statutorily prescribed purposes.|
Del. Op. Atty. Gen. 96-IB33 (Del.A.G.), 1996 WL 751553