Personnel Files exemption

Also known as 10002(l) (1) 10002(I)-1.

Thank you to Curtis Waltman for contributing to this entry. This guide is for informational purposes only, is general in nature, and is not legal opinion nor legal advice regarding any specific issue or factual circumstance.

This is the exemption in the Delaware FOIA dealing with personnel files. “Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy,” may be exempted using 10002(I)(1). There are some important legal requirements that a personnel files exemption must meet under Delaware law.

First, Delaware handles personal privacy by the definition that someone’s affairs publicized if there is no “legitimate public concern.” Privacy is not an absolute right in Delaware. It also matters how an agency received the personal information requested. If the information was required to be given to the agency it likely is covered by 10002(I)(1). If it was voluntarily given up, there is a greater chance it is not covered. It is also important to consider the purpose of the request. If it is governmental oversight in the form of a media request or other for-the-public- good purposes, then it has a decent chance of outweighing any privacy concerns.

Constitutionally the right to privacy does not always extend to name and address like the protection against search and seizure does. This does not cover individuals who give private information to government agencies voluntarily. The right to anonymity in political speech does not always cover these exemptions either. The agency must be able to prove that disclosing names and addresses of citizens who signed certain referenda would open them up to significant amounts of harassment, threats, or reprisals.

Example Appeals

This request to the Delaware Department of Transportation (DelDOT) was for public comments regarding the US 113 North-South study. Initially the agency furnished the comments but redacted all names and personal information of the commenters. The requester appealed to the AG for the unredacted documents.

The AG decided that the unredacted documents be released to the requester due to the public optionally commenting, personal information being clearly optionally given, and the sentence, “Under state law, this form is public domain, and if requested, a copy of it must be provided to the media or public.” The AG also noted that the subject matter of the referenda, roads, was highly unlikely to result in any harassment, reprisals, or threats to commenters. This case is a good display of the potential appeal routes to personnel files exemption.

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Proper Use

Exempting a document that is not relevant to the public and would disclose individual’s private information or affairs
exempting a document that would lead to harassment, threats, or reprisals on an individual

Improper Use

exempting a document that is in the public’s interest to be released and does not open up an individual to significant harassment, threats, or reprisals

Key Citations

Reardon v. News-Journal Co., 164 A.2d 263 (Del. 1960).

Lawrence v. Texas, 539 U.S. 558 (2003).

Doe v. Reed, U.S. , 130 S.Ct. 2811, 2818 (2010)

Bd. of Educ. of Colonial Sch. Dist. v. Colonial Educ. Ass’n, 1996 WL 104231 (Del. Ch. Feb. 28, 1996)