April 16, 1999
Civil Division-Kent County (739-7641)
Mrs. Charlotte Houben
745 West 11th Street
New Castle, DE 19720
Re: Freedom of Information Act Complaint
Against City of New Castle
Dear Mrs. Houben:
By letter dated February 15, 1999 (received by this Office on February 18, 1999), you alleged that the City of New Castle had denied your request to copy a consultant’s report on the management and operational efficiency of the New Castle City Police Department. The issue is whether this document is a “public record” as defined by the Delaware Freedom of Information Act (“FOIA”).
By letter dated February 25, 1999, we asked the City to respond to your complaint within ten days. Because of other scheduling commitments, the City Solicitor asked for an extension of time until March 15, 1999 to respond to your complaint, which we granted.
In its letter of March 15, 1999, the City acknowledges that it denied your request for a copy of the report, but did send to you, under cover of letter dated February 25, 1999, a copy of the General Findings from the report. The City claims that the report is not subject to disclosure under FOIA because it is a “personnel file . . . the disclosure of which would constitute an invasion of personal privacy.” 29 Del. C. Section 10002(d)1). The City also relies on the FOIA exception for records “exempted from public disclosure by statute or common law.” Section 10002(d)(6). See The News Journal Co. v. Billingsley, Del. Ch., 1980 WL 22024 (Nov. 20, 1980) (Hartnett, V.C.) (recognizing a common law right of informational privacy).
According to the City, the report consists of a synopsis of summaries of interviews with police officers. As reflected in the General Findings, the police officers were asked to speak candidly about various areas of law enforcement, including the fair administration of discipline and morale.
We do not agree with the City that the report falls within the “personnel file” exception to FOIA. Even the City admits that the report “does not constitute a formal personnel file.” We agree, however, that the common law right of privacy in this case outweighs the public’s right to know. If the anonymity and testimony of the police officer witnesses were not protected, “[t]he result would be that few individuals would come forth to embroil themselves in controversy or possible recrimination . . . .” Billingsley, supra at p. 2. We also find that the report cannot be meaningfully redacted. “[W]hen protected information is inextricably intertwined with the rest of the record, it is appropriate to withhold the entire record.” State ex rel. Martin v. City of Cleveland, Ohio App., 1992 WL 2861, at p. 2 (Jan. 8, 1992).
Your complaint questions whether the City followed appropriate procedures in commissioning the consultant’s report. That is a matter of municipal law which is outside the jurisdiction of this Office. You also ask whether the City can “refuse to advise its citizens of the cost of such an action?” You do not allege that you have asked to inspect and copy any public records which might reflect the cost of the consultant’s report. If they exist and are not otherwise privileged, then they may be subject to FOIA, but we do not take a position on that issue at this time.
For the foregoing reasons, we conclude that the City of New Castle did not violate the public records requirements of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: M. Jane Brady
Daniel F. Wolcott, Jr., Esquire
Phillip G. Johnson