Del. Op. Atty. Gen. 03-IB01 (Del.A.G.), 2003 WL 150997
Office of the Attorney General
State of Delaware
Opinion No. 03–IB01
January 10, 2003
Re: Freedom of Information Act Complaint Against New Castle County
*1 Mrs. Marion C. Stewart
1912 Marsh Road, Apt. 351
Wilmington, DE 19810-3963
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.
Relevant Statutes
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).
Legal Authority
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.
*2 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
*3 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 disclosure.
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.
*4 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. Id.
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.
Conclusion
*5 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
Approved
Malcolm S. Cobin
State Solicitor
Del. Op. Atty. Gen. 03-IB01 (Del.A.G.), 2003 WL 150997
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