Delaware Department of Justice
Attorney General
Kathy Jennings

13-IB06 11/20/13 FOIA (Informal) Opinion Letter to Mr. Chase re: FOIA Complaint Concerning New Castle County (911 Calls)

Attorney General (Informal) Opinion No. 13-IB06
November 20, 2013
Mr. Randall Chase
The Associated Press
P.O. Box 934
Dover, DE 19903
RE:  FOIA Complaint Against New Castle County (911 Calls)
Dear Mr. Chase:
By petition, received via email on September 27, 2013, you asked this Office to determine whether the New Castle County government (the “County”) violated the open records provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), by refusing to release audio recordings of 911 calls made on August 1, 2013 from the residence of Vice President Joseph R. Biden, Jr.  For the reasons set forth below, this Office has determined that the County’s refusal to release the requested material was appropriate to protect personal privacy rights and did not violate FOIA.
According to the County, on August 1, 2013, the County’s 911 emergency communications center received a call for service from the residence of the Vice President.  The call described what was believed to be a health emergency, and emergency response units were dispatched.  Shortly after the initial call, a second call from the Vice President’s residence indicated that no emergency response was required.  The County has not disclosed publically the subject of the 911 calls.  Press reports have intimated that the calls concerned the Vice President’s son, Delaware Attorney General Beau Biden.
On August 21, 2013, you submitted a FOIA request to the County seeking access to the 911 calls.  By letter dated September 4, 2013, the County denied your request, and this appeal followed.
By letter dated October 15, 2013, the County responded to the petition and submits that the underlying FOIA request was properly denied because the recordings are exempt from public inspection under FOIA.  Specifically, the County asserts that the 911 recordings:

• are exempt under 29 Del. C. § 10002(l)(17)(a)(1), which exempts emergency response procedures or plans if disclosure would reveal vulnerability assessments, specific tactics, specific emergency procedures or specific security procedures;

• are part of a medical file that is exempt under 29 Del. C. § 10002(l)(1) because disclosure would constitute an invasion of personal privacy under 16 Del. C. § 1212(a); and

• implicate privacy rights arising under constitutional and Delaware common law and are therefore exempt under FOIA by virtue of 29 Del. C. § 10002(l)(6).

On October 22, 2013, we received your sur-reply contesting the legal bases for the exemptions asserted by the County.
We address below the exemptions invoked by the County.  With one exception, we conclude that those exemptions do not apply to the 911 communications in question.  We agree with the County that constitutional and common law privacy rights are at stake in this dispute.  We find that disclosure of the 911 recordings would violate the privacy rights of the individual that was the subject of the 911 calls.
We first address the County’s reliance on the security exemption set forth in section 10002(l)(17)(a)(1).  The County’s security concerns are twofold.  First, the County contends that the address identified in the dispatch communications is the residence of the Vice President of the United States.  Second, the County asserts that the 911 communications would reveal response procedures employed by the Secret Service during an emergency situation.
We are not persuaded that the 911 communications contain the type of sensitive information covered by section 10002(l)(17)(a)(1).  As you correctly point out, the location of the Vice President’s residence in Delaware is not a secret and is a matter of public record.  Further, the County has neither alleged nor established that the 911 communications contain “vulnerability assessments, specific tactics, specific emergency procedures or specific security procedures.”  29 Del. C. § 10002(l)(17)(a)(1) (emphasis added).  The County has not met its burden under section 10002(l)(17)(a)(1).
We next address whether the 911 communications at issue are exempt under 29 Del. C. § 10002(l)(1).  That section exempts “[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under . . . any State or federal law as it relates to personal privacy.”  29 Del. C. § 10002(l)(1).  The County points to 16 Del. C. § 1212(a) as a Delaware law that shields “protected health information” from disclosure under FOIA.  We note that the County does not assert that its 911 emergency communications center is subject to the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which protects the confidentiality and integrity of personally identifiable health information by restricting its disclosure by covered entities.  See 42 U.S.C. § 1320d; 45 C.F.R. §§ 160.103, 164.500(a).1
Section 1212(a) provides that “protected health information is not public information as defined [in FOIA] and may not be disclosed without the informed consent of the individual . . . who is the subject of the information except as expressly provided by statute.”  16 Del. C. § 1212(a).  “Protected health information,” in turn, is defined as:

any information, whether oral, written, electronic, visual, pictorial, physical or any other form, that relates to an individual’s past, present or future physical or mental health status, condition, treatment, service, products purchased, or provision of care and that reveals the identity of the individual whose healthcare is the subject of the information, or about which there is a reasonable basis to believe such information could be utilized (either alone or with other information that is or should reasonably be known to be available to predictable recipients of such information) to reveal the identity of that individual. 16 Del. C. § 1210(4).

The County’s reliance on this exemption presents two issues:  (1) whether the 911 recordings are contained in or otherwise part of a “personnel, medical or pupil file,” as contemplated in 29 Del. C. § 10002(l)(1); and (2) whether section 1212(a) exempts protected health information compiled or otherwise possessed by the County.
As to the first issue, we note that we have not had occasion to define a medical file for purposes of section 10002(l)(1).  This Office has opined as to what constitutes a personnel file under that exemption.  We previously determined that section 10002(l)(1) applies only to files containing personnel records or similar information that would typically be used in deciding whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to other traditional personnel actions.  See Op. Att’y Gen. 02-IB24 (Oct. 1, 2002) (“An agreement settling an employee’s legal claim does not contain information gathered by an employer for the purposes of making traditional personnel decisions.”).  Under the same rationale, we think that reliance on the medical file exemption requires a threshold showing that the record or information in question typically is used in making medical decisions.  The record before us contains no such showing.
Even if the 911 recordings in question were found to be part of a medical file, we conclude that the privacy statute invoked by the County, 16 Del. C. § 1212(a), does not apply.  Section 1212(a) exempts protected health information from the scope of FOIA.  You contend that section 1212(a) — originally codified at 16 Del. C. § 1232(a), see 73 Del. Laws, ch. 355, § 12 — applies only to information collected by the Delaware Department of Health and Social Services (“DHSS”) and a few other state agencies.  Your point is well taken and supported by the language of 16 Del. C. § 1211, which governs the use of protected health information.  Those provisions reference the collection by DHSS and certain other state agencies of protected health information and restrict the use of such information by those public bodies to further legitimate public health purposes.  See 16 Del. C. § 1211(a); see also 16 Del. C. § 1211(d) (“Protected health information shall not be used by the State for commercial purposes.”).  Section 1211 does not contemplate the collection or use of protected health information by the County.  We conclude that section 1212(a), when construed in light of related provisions, does not exempt or otherwise govern the disclosure of information compiled or otherwise possessed by the County.2
Lastly, we address the County’s assertion that the 911 recordings are protected by the U.S. Constitution and/or Delaware common law.  Under the U.S. Constitution, the right to privacy extends to an individual’s interest in avoiding governmental intrusion into personal matters.  See Whalen v. Roe, 429 U.S. 589, 599-600 (1977).  The Third Circuit has recognized that medical records may contain intimate facts of a very personal nature and has held that such records fall well within the ambit of materials entitled to privacy protection under the U.S. Constitution.  See United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (“Information about one’s body and state of health is matter which the individual is ordinarily entitled to retain within the ‘private enclave where he may lead a private life.’”); see also Neuberger v. Gordon, 567 F. Supp. 2d 622, 633 (D. Del. 2008).
Delaware common law likewise recognizes a right of personal privacy.  In 1963, the Delaware Supreme Court first recognized the right of personal privacy — or the “right to be let alone” — and held that violations of that right may be actionable under several tort theories, including the wrongful publication of private matters violating ordinary decencies.  See Barbieri v. News–Journal Co., 189 A.2d 773, 774 (1963).  Though Delaware courts have not specifically addressed whether unauthorized disclosure of medical records may be actionable under this theory, we think an individual’s common law right to privacy would extend to personal health information.
Constitutional and common law rights of privacy may be entitled to protection under FIOA.3   See, e.g., Op. Att’y Gen. 13-IB03 (July 12, 2013) (determining that members of a mayor’s security detail have common law privacy interests in protecting their identities); Op. Att’y Gen. 10-IB09 (Sept. 2, 2010) (addressing, under FOIA, the constitutional “right to freedom from the government intruding in private, intimate matters”).  When legitimate privacy rights are implicated under FOIA, we must balance those rights against the competing need for access to information to further FOIA’s primary goals — government transparency and accountability.  See Op. Att’y Gen. 13-IB03.
The 911 recordings implicate important rights of personal privacy under the U.S. Constitution and Delaware common law.  The 911 recordings reflect discussions about a perceived medical emergency and may include sensitive, private information about the subject’s past or present health status.  Medical information of this sort — namely, personal health information — is subject to myriad statutory and regulatory protections at both the federal (HIPPA) and state (16 Del. C. § 1212) level and likely would be subject to confidentiality and nondisclosure restrictions in the hands of almost every other conceivable entity involved in providing or facilitating medical services.  While 911 dispatch centers, through legislative oversight or otherwise, may not be subject to those express safeguards, we think that our federal and state legislators have articulated a very clear public policy against the disclosure of personal health information.  Delaware’s FOIA and its federal counterpart both reflect this mandate.  See U.S.C. § 552(b)(6) (exempting under the federal Freedom of Information Act all information about individuals in personnel, medical and similar files if disclosure would constitute a clearly unwarranted invasion of personal privacy); 29 Del. C. § 10002(l)(1) (exempting personnel, medical and pupil files if disclosure would constitute an invasion of personal privacy under state or federal law).
You have questioned whether the subject of the 911 calls had any expectation of privacy and submit that 911 dispatch communications can be monitored by the public and are sometimes disclosed publicly.  It is important here to distinguish between 911 calls and radio communications between the County’s 911 emergency call operators and the dispatch or other employees of the emergency medical services provider(s).  Calls made to the County’s 911 communications center are received through a variety of phone exchanges and numerous cell towers.  Those are private telephone calls.  Even if subsequent communications between dispatch employees and/or responders can be monitored through the use of radio scanners, we are not aware of the widespread recording and publication of such communications.  Similarly, though 911 calls and dispatch communications have been disclosed from time to time, such disclosures are the rare exception in this State.  The subject of the 911 calls, whether or not a public figure, has a legitimate expectation of privacy with respect to any personal health information reflected in the 911 recordings.  See Hunt v. United States Marine Corps, 935 F. Supp. 46, 54 (D.D.C. 1996) (finding that a senatorial candidate had unquestionable privacy interest in his military service and medical records).
We must balance the privacy rights at stake here against the public’s need to access the 911 recordings.  The public need in this case has not been articulated clearly.  As a general rule, the public has little or no interest in, and thus has no legitimate need to access, an individual’s personal health information.  See Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 612 (Fla. Dist. Ct. App. 2007) (“[I]n most instances, an individual’s medical records would not be of public interest.”).  We see no basis in the present record to deviate from the general rule.
We conclude that the privacy rights implicated in this case outweigh whatever interest the public may have in disclosure.
Very truly yours,
Jason W. Staib
Deputy Attorney General
cc: Allison E. Reardon, State Solicitor (via email)
Bernard V. Pepukayi, County Attorney
1 We make no determination with respect to the applicability of HIPAA in this matter, though we do note that at least one state court has concluded that HIPAA prevents disclosure of 911 emergency medical calls under that state’s open records law.  See Hill v. East Baton Rouge Parish Dep’t of Emergency Med. Servs., 925 So.2d 17, 21-23 (La. Ct. App. 2005) (majority holding that tapes of 911 calls requesting emergency medical assistance were not subject to inspection under Louisiana’s Public Records Law based on finding that 911 call center was a “health care provider” under HIPAA).
2 We note that in Op. Att’y Gen. 06-IB11 (May 31, 2006) we assumed, without deciding, that section 1232(a) would apply to documents and information collected by a school board.  We ultimately determined in that case that section 1232(a) did not preclude the disclosure of generic sick leave information contained in a school district employee’s sign-out sheets.
3 We note that the access contemplated under FOIA is absolute.  There are no safeguards whatever to prevent subsequent disclosure of information obtained under FOIA.  Subsequent dissemination of personal health information obtained under FOIA is possible and indeed likely if the information pertains to a public figure.

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