Delaware: Denied Personalized License Plates

Dear Mr. Rudenberg,

The Delaware Department of Transportation ("DelDOT") received your FOIA request on March 14, 2022. Please note, under the Delaware FOIA statute, DelDOT has 15 business days to respond to your request. I will respond further within that time frame.

Sincerely,

Kristin Schaap
Paralegal III
Legal Department
Department of Transportation
800 Bay Road
P.O. Box 778
Dover, DE 19903
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Dear Mr. Rudenberg,
This responds to your request dated March 14, 2022 to the Delaware Department of Transportation ("DelDOT") under the Delaware Freedom of Information Act, 29 Del. C. §§10001-10007 ("FOIA").

In your request regarding vanity license plates, you ask for the following:

1. If one is kept, a copy of the current list of prohibited or automatically denied vanity or personalized license plates.

1. A copy of any list of requested vanity or personalized plates denied in 2021 or 2022.

1. Any correspondence sent to any person whose vanity or personalized plates were denied. This request is limited to correspondence sent after January 1, 2022.

1. If a system is maintained for soliciting or receiving complaints concerning vanity or personalized license plates, a copy of any complaint received in 2021 or 2022.

1. If any vanity or personalized license plates have been revoked since January 1, 2021, any records related to the revocation.

6. A copy of any statute or regulations concerning what combinations of vanity or personalized license plates are permitted or prohibited.

First, for numbers one and two of your request, DelDOT is unable to produce these under FOIA as the information is not maintained by DelDOT in a readily accessible format that can be accessed without writing a program or creating a new document. FOIA does not require an agency to create a document or program that does not already exist. See Del. Op. Att'y Gen. 06-IB17 (Aug. 21, 2006) (finding that FOIA does not require an agency to develop a program or create a new record to comply with a FOIA request).
Second, for number four of your request, there is no centralized location where complaints are stored. The DMV receives complaints in person, via telephone or email, social media posts, an employee sees the plate out on the road, etc. Even if there was a central location where complaints were stored, this portion of your request would be denied for the same reasons as number three and five of your request, discussed below.
Third, for numbers three and five of your request, these records are not considered a public record pursuant to FOIA. Specifically, 29 Del. C. §10002(o)(6), exempts from disclosure under FOIA "[a]ny records specifically exempted from public disclosure by statute or common law." The information you requested is exempted from public disclosure under FOIA pursuant to 21 Del. C. §305, which limits the release of personal information by the DMV. Section 305 of Title 21 of the Delaware Code specifically provides that "...the Division of Motor Vehicles and any officer, employee or contractor thereof or any other person shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the Division in connection with a motor vehicle record." Records received or generated regarding license plates, which are linked to a motor vehicles Vehicle Identification Number, are Motor Vehicle Records which are exempt from FOIA and may not be provided to any person or entity unless the person or entity satisfies one of the 13 permitted reasons for information being disclosed as set forth within the statute. Your request does not provide any information which would allow DelDOT to undertake a review and analysis that the reason for seeking the information is one of the limited permitted uses specified by statute. Further, a FOIA request is not the procedure established by the Division of Motor Vehicles (DMV) to review requests for information protected from disclosure under 21 Del. C. §305. All requests for Motor Vehicle Records must be made via submission of an MV703 form. That form must identify the reason as limited by statute for a person seeking access to Motor Vehicle Records and include the statutorily mandated fee of $25 per Motor Vehicle Record for each Motor Vehicle Record sought. That MV703 form must also be signed and notarized prior to submission. Accordingly, DelDOT cannot provide you with the information you requested under FOIA as it contains personal information obtained in connection with a Motor Vehicle Record and you have failed to provide information which would demonstrate that your reason(s) for seeking the information is one permitted by statute. Further, you have failed to follow the procedures established by statute and the DMV, including paying the statutory mandated fee(s), for obtaining copies of Motor Vehicle Records.

Even if the §305 did not prohibit the disclosure of Motor Vehicle Records, any correspondence sent to an individual regarding their Motor Vehicle would have to be redacted for personal information, i.e. name and address, VIN, as well as with the vanity plate being revoked pursuant to 29 Del. C. §10002 (o)(1).

For number six, this request constitutes a question as opposed to a request to inspect a document. A FOIA request is defined in statute as "a request to inspect or copy public records pursuant to §10003 of this title." 29 Del. C. §10002(h). Accordingly, a FOIA request made pursuant to 29 Del. C. §10003 requires DelDOT to produce public records for inspection or copying but does not require the agency to answer questions. This question seeks to have DelDOT provide legal advice and/or answer a legal question. FOIA does not require and State agencies are prohibited from providing legal advice to persons not employed by the State. Further, the statutes and regulations governing motor vehicles in the State are publicly available as the Delaware Code and the Register of Regulations are published and available online. The following are the links to the publicly available code and regulations: https://delcode.delaware.gov/index.htm and https://regulations.delaware.gov. In the event you have any questions regarding a Delaware statute or regulation, you should consult your own attorney for guidance.

Finally, there is pending litigation against DelDOT involving the denial/recall of a vanity license plate. Additionally, DelDOT is aware of at least one other instance where a person whose vanity license plate has been denied/recalled has threatened to file litigation against DelDOT if the license plate is not approved/issued. As such, 29 Del. C. §10002(o)(9) is applicable and exempts from disclosure "[a]ny records pertaining to pending or potential litigation which are not records of any court." Based on the subject matter detailed in your FOIA, it is DelDOT's position that a "realistic and tangible threat of litigation" exists such that the "potential litigation" exemption to FOIA applies. See Del. Op. Att'y Gen. 16-IB11 (2016).

Accordingly, for the above mentioned reasons, your request is being denied.

Sincerely,
Kristin

Kristin Summers
Paralegal III
Legal Department
Department of Transportation
800 Bay Road
P.O. Box 778
Dover, DE 19903

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