PRINT VERSION: Attorney General Opinion No. 25-IB04
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB04
January 17, 2025
VIA EMAIL
The Honorable Sean M. Lynn
House of Representatives
Delaware General Assembly
sean.lynn@delaware.gov
RE: FOIA Petition Regarding Division of Legislative Services, Delaware General Assembly
Dear Representative Lynn:
We write in response to your correspondence alleging that the Division of Legislative Services of the Delaware General Assembly violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the Division did not violate FOIA by failing to provide an affidavit with its response to your request or by redacting the employee names from the documents provided to you. As the remaining claims are moot or outside the scope of this Office’s jurisdiction, they are declined for consideration.
BACKGROUND
You submitted a FOIA request to the Division on November 14, 2024 seeking three items:
- all NDAs signed by House Staff;
- all legal opinions on the legality of NDAs for House employees; and
- all invoices for legal services related to retaining counsel for NDAs[.][1]
The Division responded to the first item by attaching a copy of “a confidentiality policy signed by 1 of the 5 House staff members requested to sign such a policy” and noting that this attached copy is the same as the other four policies.[2] The policy was entitled “House of Representatives – Democratic Caucus Non-Disclosure and Confidentiality Policy.” The Division stated for the second item that no legal opinions existed. For the third item, the Division attached records regarding the legal services provided by two firms. This Petition followed.
In the Petition, you allege that in 2023, several staff members of the Delaware House of Representatives were compelled to execute non-disclosure agreements, “at the behest of unknown elected officials serving in the Delaware House of Representatives and their designated Majority Caucus Chief of Staff.”[3] You believe that your status as a member of the General Assembly entitles you to the requested records, but you requested the information through FOIA after making multiple requests in your capacity as a Representative. You assert that these agreements violate certain constitutional and statutory provisions. You allege that the Division violated FOIA by failing to provide all five agreements and by failing to provide an affidavit justifying its denial of access with its response.
The Division provided you the document you requested. However, the Division protected the identity of its employees by redacting the employee’s name and signature, indicating these redactions were necessary as disclosure of the identity of each employee, which you sought, would be an invasion of privacy. You state that the Division’s redactions frustrate “inquiry into who requested the execution of the subject NDAs and the reason(s) why they were requested.”[4] You believe the redactions are inappropriate, and you argue that providing copies of the signed agreements would not be an invasion of privacy. You point out that staff names of legislators are published online in a staff directory, and the Delaware Department of State routinely releases the names of all State employees through the FOIA process. You do not believe that these agreements were signed as a part of a disciplinary action or for a breach of confidentiality. Further, even if a privacy interest was found to exist, it must be weighed against the public interest in disclosure, and you believe that public interest is significant here. You allege that finding out why certain employees were asked to execute these particular agreements goes to FOIA’s core purpose of government accountability.
On December 6, 2024, the Division’s Director replied to the Petition. The Division provided all five copies of the redacted, signed confidentiality policies and noted that the “VOID” marking is in the handwriting of the Speaker who voided the documents, and the signature belongs to the Chief Clerk of the House of Representatives who wrote on the bottom of the policy.
The Division argues that revealing the identity of staff members who signed the policies invades their privacy. The Division states that while it might ordinarily consider such records personnel files, the Speaker issued a press release on November 15, 2024 that included an unsigned copy of the policy and the signed policies were redacted and disclosed to you through the FOIA process. The Division believes it has been as forthcoming as appropriate in light of all circumstances. Section 10002(o)(6) protects documents subject to informational privacy, and in the FOIA context, the privacy concerns must be balanced against the competing need for access to further accountability of government. In this case, the Division contends that the disclosure of the names is not necessary to further governmental accountability, especially as some information was already disclosed in the unredacted portions of the policies and through the Speaker’s press release. The Division states that these public releases provided background for accountability. In addition, the Division notes “the information provided to [you] in [the Director’s] November 20 response was determined sufficient to balance accountability with the right of these staff members to be not made the subject of press reports or to deal with attempts at contact by the press, especially given that these staff members did nothing more than comply with a request from a supervisor and have not willingly brought themselves into the public eye.”[5] For these reasons, the Division maintains that the identity of the staff members need not be disclosed.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.[6] The public body has the burden of proof to justify its denial of access to records.[7] In certain circumstances, a sworn affidavit may be required to meet that burden.[8]
The Petition makes several allegations outside of the scope of FOIA, including claims regarding the legality of nondisclosure agreements and the amount of access legislators should have to staff records. This Office is limited to considering FOIA claims in this petition process.[9] We find that the Petition’s non-FOIA claims do not fall within the purview of this Office’s authority to consider, and these claims are declined for consideration in this Opinion.
The Petition asserts that the Division violated FOIA by failing to include an affidavit with its initial response to the request. As noted, an affidavit may be required to meet the public body’s burden. However, the public body’s burden under Section 10005(c) is triggered by the actions in Section 10005, namely, a FOIA lawsuit or petition.[10] As a public body does not have an obligation to meet its burden by providing an affidavit with its response to a FOIA request, we find that the Division did not violate FOIA in this regard.
You have now been provided copies of all five redacted policies entitled “House of Representatives – Democratic Caucus Non-Disclosure and Confidentiality Policy.” Each was marked “VOID,” initialed by the new Speaker of the House and dated November 19, 2024, and signed by the Chief Clerk with a note the policy was voided as of the same date. Thus, the remaining issue is whether the Division appropriately redacted the names and signatures of the staff members who signed these policies. The Division asserts that the identities of these staff members were appropriately withheld under the right of privacy.
FOIA excludes from the definition of “public record” any records that are “specifically exempted from public disclosure by statute or common law.”[11] Delaware recognizes a common law right of privacy, i.e. “the right to be let alone.”[12] “[I]n the context of FOIA, we have determined that legitimate privacy claims under Delaware common law must be balanced against the competing need for access to information to further the accountability of government.”[13]
In this instance, you ask this Office to find that the identities of the staff members must be disclosed in the public interest of furthering government accountability. The Division provided you with the nondisclosure policies that revealed the text of the policy, in addition to the handwritten notes of the public officials who wrote on the document. The identity of the General Assembly staffers who signed these documents is not a matter of compelling public interest such that it should overcome their individual privacy interest. These employees are not elected officials and while their identities may be discoverable though other means, that is not enough of a compelling interest to overcome the staff’s privacy interest in the context of FOIA. Here, the Division provided you with as much information as it could, while still protecting the important privacy rights of General Assembly staff.
CONCLUSION
For the foregoing reasons, we conclude that the Division did not violate FOIA by failing to provide an affidavit with its response to your request or by redacting the employee names from the documents provided to you. As the remaining claims are moot or outside the scope of this Office’s jurisdiction, they are declined for consideration.
Very truly yours,
/s/ Dorey L. Cole
_____________________________
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
_______________________________
Patricia A. Davis
State Solicitor
cc: Mark J. Cutrona, Esq., Director, Division of Legislative Services
[1] Petition, Ex. E.
[2] Petition, Ex. F.
[3] Petition.
[4] Id.
[5] Response.
[6] 29 Del. C. § 10003(a).
[7] 29 Del. C. § 10005(c).
[8] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[9] 29 Del. C. § 10005(e)(“Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur.”); see also Del. Op. Att’y Gen. 21-IB10, (May 4, 2021) (finding that “legality of the FOIA statute and other Delaware statutes . . . are outside the scope of this Office’s statutory authority to opine on”); Del. Op. Att’y Gen. 18-IB50, 2018 WL 6015767, at *2 (Oct. 12, 2018) (finding that this Office has “no authority under FOIA to direct [the public body] with regard to this Office’s interpretation of any other Delaware statute”).
[10] 29 Del. C. § 10005(c) (“In any action brought under this section, the burden of proof shall be on the custodian of records to justify the denial of access to records, and shall be on the public body to justify a decision to meet in executive session or any failure to comply with this chapter.”); Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021) (“[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts.”) (emphasis added).
[11] 29 Del. C. § 10002(o)(6).
[12] Barbieri v. News-Journal Co., 189 A.2d 773, 774 (Del. 1963) (recognizing a common law right of privacy and creating standards for the tort of invasion of privacy); Reardon v. News-Journal Co., 164 A.2d 263, 266 (Del. 1960).
[13] Del. Op. Atty. Gen. 13-IB03, 2013 WL 4239232, at *3 (July 12, 2013) (citation omitted).
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