Can a state licensing board be forced to hand over its licensees' email addresses to a company that wants to market to them?

Official title

17-IB13 07/06/2017 FOIA Opinion Letter to Mr. Nicholas Georgalis re: FOIA Complaint Concerning the Delaware Association of Professional Engineers

Plain-English summary

An Ohio resident who develops and sells training courses for professional engineers asked the Delaware Association of Professional Engineers (DAPE) for a list of every registered engineer, including each person's email address, in a comma-delimited spreadsheet file. DAPE pointed him to the public roster on its website, which didn't include email addresses; when he insisted email addresses were public records, DAPE refused, and he petitioned the AG's office, even asking the AG to sue DAPE on his behalf.

The AG ruled for DAPE on two independent grounds, while flagging a possible standing problem it didn't need to resolve. First, on privacy: Delaware recognizes a common-law right of privacy for information the public disclosure of which isn't outweighed by a genuine public interest in government accountability, and here the requester was using FOIA to gather sales leads for his paid courses rather than to learn anything about how DAPE operates, so the balance tipped against disclosure regardless of the fact that DAPE had already published licensees' names and addresses elsewhere; email addresses are different, and licensed engineers have a real privacy interest in not having them handed out. Second, on format: FOIA doesn't require an agency to convert its existing data into a new file format like comma-delimited text, since that would mean creating a new record rather than disclosing an existing one, and DAPE didn't keep the roster in that format. The AG separately noted, in a lengthy footnote, that Delaware's FOIA is a citizens-only statute under the U.S. Supreme Court's McBurney v. Young, and since the requester hadn't disputed being an Ohio resident, he likely lacked standing to bring the petition at all, though the AG chose to rule on the merits anyway.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: If a state licensing board already publishes licensees' names and addresses, does that mean their email addresses are public too?
A: Not according to this opinion. The AG treated email addresses as a distinct category with its own privacy interest, separate from information the board had chosen to publish, and the fact that some contact information was already public didn't change the privacy analysis for email addresses specifically.

Q: Does it matter if the person requesting records wants to use them for a commercial purpose, like marketing?
A: It can, per this opinion's privacy-balancing analysis, which asks whether disclosure would meaningfully inform the public about government operations as opposed to serving the requester's private commercial interest. That said, the AG was careful to note that a requester's motive is not, as a general FOIA matter, supposed to affect whether they can access public records in the first place; here the ruling ultimately rested on the privacy exemption itself, not on punishing the requester's purpose.

Q: Can I make a government agency reformat its data into a spreadsheet file type I specify?
A: No, under this opinion. If the agency doesn't already keep the information in that format, FOIA doesn't require it to convert or restructure its data just to satisfy a requester's preferred file format, since that would amount to creating a new record.

Q: Does Delaware's FOIA apply to people who live in other states?
A: This opinion notes that Delaware's FOIA is a "citizens-only" statute under the U.S. Supreme Court's McBurney v. Young, meaning an out-of-state requester may lack standing to petition for a FOIA determination at all, though the AG can still choose to address the substance of a petition even while flagging that standing issue.

Background and statutory framework

FOIA requires public records be open for inspection and copying, 29 Del. C. § 10003(a), with "public record" broadly defined at 29 Del. C. § 10002(l), except for information exempted by other statute or common law, 29 Del. C. § 10002(l)(6). The Delaware Supreme Court recognized a common-law right of privacy in Barberi v. News-Journal Co., and the Delaware Superior Court clarified in Guthridge v. Pen-Mod, Inc. that the right is not absolute but is qualified by competing circumstances and the rights of others. This office has applied a balancing test weighing that privacy interest against the public's interest in government accountability, following the U.S. Supreme Court's approach in U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press that FOIA's purpose turns on a document's relationship to opening agency action to public scrutiny. The opinion also drew on the Delaware Superior Court's ACLU of Del. v. Danberg for the general principle that a requester's motive is not ordinarily relevant to whether they can access public records, distinguishing that general rule from the privacy-specific balancing test applied here. FOIA's citizens-only limitation traces to the U.S. Supreme Court's McBurney v. Young, upholding such requirements against a constitutional challenge, and this office's enforcement provisions and petition process are found at 29 Del. C. § 10005.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006, the Freedom of Information Act (as cited in this opinion)
• 29 Del. C. § 10001, FOIA's declaration of policy
• 29 Del. C. § 10002(l), definition of "public record"
• 29 Del. C. § 10002(l)(6), exemption for records protected by other statute or common law, including the common-law right of privacy
• 29 Del. C. § 10003(a), right to inspect and copy public records
• 29 Del. C. § 10003(i), requirements for requests concerning email records of public bodies
• 29 Del. C. § 10003(i)(1), scope limitation of the email-records provision to public bodies' own records
• 29 Del. C. § 10005, enforcement and petition process, including the citizens-only limitation

Cases:

• McBurney v. Young, 133 S.Ct. 1709 (2013), upholding a citizens-only public records statute against constitutional challenge
• Barberi v. News-Journal Co., 189 A.2d 773, 774 (Del. 1963), recognizing a common-law right of privacy in Delaware
• Guthridge v. Pen-Mod, Inc., 239 A.2d 709, 714 (Del. Super. 1967), the common-law privacy right is qualified, not absolute
• U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772 (1989), FOIA's applicability turns on a document's relationship to opening agency action to public scrutiny
• ACLU of Del. v. Danberg, 2007 WL 901592, at *3 (Del. Super. March 15, 2007), a requester's motive is generally not relevant to public-records access

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/07/06/17-ib13-07062017-foia-opinion-letter-mr-nicholas-georgalis-re-foia-complaint-concerning-delaware-association-professional-engineers/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/07/Attorney-General-Opinion-No.-17-IB13.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB13

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB13

July 6, 2017

VIA EMAIL

Nicholas Georgalis

[email protected]

RE: September 26, 2016 FOIA Correspondence Regarding the Delaware Association of Professional Engineers

Dear Mr. Georgalis:

The Delaware Department of Justice (“DOJ”) received your correspondence, dated September 26, 2016, seeking a determination as to whether the Delaware Association of Professional Engineers (“DAPE”) violated the public records provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”). I treat your correspondence as a petition for a determination pursuant to 29 Del. C. § 10005 (“Petition”). [1] Pursuant to our routine process in responding to petitions for determination under FOIA, we invited DAPE to submit a written response to the Petition. We received DAPE’s response to the Petition (“Response Letter”) on October 3, 2016. I have reviewed the Petition and the Response Letter. For the reasons set forth below, I conclude that DAPE did not violate FOIA as alleged in the Petition.

RELEVANT FACTS

On August 30, 2016, you submitted a FOIA request to DAPE for a list of registered professional engineers. [2] Specifically, you requested their first name, middle name, last name, suffix name, State, zip code, email address, status, and PE number. [3] You also requested that the file be provided “as an electronic text file in comma delimited format attached to an email response” to an email address that you provided. [4] That same day, DAPE’s Executive Director responded by referring you to the roster available on DAPE’s website. [5] Moments later, you responded that the list did not contain email addresses. [6] You cited 29 Del. C. § 10003(i), which concerns requests for email records, and stated that “email addresses are Public Records and must be disclosed upon request.” [7] DAPE’s Executive Director replied: “Email addresses are not public records.” [8] You again responded by citing to 29 Del. C. § 10003(i). [9]

SUMMARY OF THE ARGUMENTS

In your Petition, you argued that DAPE violated FOIA by failing to provide you with the email addresses of registered professional engineers and by failing to provide you information in the requested format. [10]

In its Response Letter, DAPE argued that it was not required to comply with your FOIA request in the first instance because you are a resident of Ohio. [11] DAPE also noted that it “does not have the information in the format [you] demanded” [12] and FOIA does not require it to create records that do not exist, provide records in a specific format, or develop a program in order to comply with a FOIA request. [13] Finally, DAPE argued that the information is exempted from FOIA pursuant to 29 Del. C. § 10002(l)(6) and, more specifically, the common law right of privacy. [14]

RELEVANT STATUTES

Pursuant to 29 Del. C. § 10003(a):

All public records shall be open to inspection and copying during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.

FOIA defines a “public record” as “information of any kind, owned, made, used, retained, received, produced, drafted or otherwise compiled or collected, by any public body, relating in any way to public business or in any way of public interest, or in any way related to public purposes.” [15] Certain information, however, is exempt from this definition. For example, 29 Del. C. § 10002(l)(6) exempts “[a]ny records specifically exempted from public disclosure by statute or common law.”

DISCUSSION

DAPE Did Not Violate FOIA by Denying Your Request for Email Addresses of Registered Professional Engineers

The Delaware Supreme Court has recognized a common law right of privacy. [16] However, this right is not absolute. [17] Rather, it is “qualified by the circumstances and also by the rights of others.” [18] In the FOIA context specifically, “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.” [19]

In Del. Op. Att’y Gen. 96-IB33, [20] this Office recognized that “[i]n certain situations, the balance between a private right of informational privacy may be outweighed by the public interest in disclosure.” [21] We stated, however, that the balance would weigh in favor of disclosure “only if disclosure will contribute significantly to public understanding of the operations or activities of government, as opposed to the commercial interest of the requestor.” [22] Finding it “difficult to conceive of a situation in which the reason for requesting the names and addresses of business license holders would be for any purpose other than the commercial interest of the requestor,” we concluded that, “as a general rule, the names and addresses of the holders of business licenses are exempt from disclosure by a common law right of privacy.” [23]

Here, DAPE does not dispute that the right of privacy may be outweighed by the public interest in disclosure. [24] Rather, DAPE argues that your request is a clear attempt to further your private commercial interest and in no way contributes to the public understanding of the activities of the government. [25] DAPE notes that you are a developer and instructor of training courses, which you make available to professional engineers for a fee, and argues that you are using FOIA to obtain the email addresses of private citizens who meet the target audience of your product for sale. [26] As such, DAPE argues, your request “does not seek information pertaining to the operation of the Delaware Association of Professional Engineers or any other public body.” [27] Under these circumstances, DAPE contends, “the balance of equity weighs against requiring disclosure of e-mail addresses of private citizens who happen to be licensed by a Delaware public body.” [28] I agree.

Of course, I recognize that DAPE has already published the names and addresses of registered professional engineers. However, the fact that DAPE has chosen to publish this information has little bearing on the analysis of whether that information is a public record subject to FOIA. Indeed, the registered professional engineers have a clear privacy interest in avoiding public disclosure of their email addresses. Moreover, I am not persuaded that releasing this information would shed any light on the activities of the government or further any public interest. [29] Under these circumstances, and without regard to the apparent commercial purpose behind your request, [30] I conclude that the balance here weighs against disclosure of the email addresses of private citizens licensed by DAPE. That information is therefore exempted from FOIA’s definition of “public record” pursuant to 29 Del. C. § 10002(l)(6) and, more specifically, the common law right of privacy. As the information is not a “public record,” DAPE did not violate FOIA by denying your request for the email addresses of registered professional engineers, as alleged in your Petition. [31]

DAPE Did Not Violate FOIA by Failing to Provide Records in the Specific Format Requested

Specifically, you asked for each registered professional engineer’s first name, middle name, last name, suffix name, State, zip code, email address, status, and PE number in a comma-delimited format. DAPE asserts that this “is a popular format for transferring data from one application to another.” [32] Moreover, DAPE maintains that it “does not have the information in the format [you] demanded.” [33]

This Office has previously noted that FOIA does not require a public body “to convert its electronic database from a relational database into CVS (comma separated) files,” as that “would amount to the creation of a new public record.” [34] As DAPE does not maintain the information in a comma-delimited format and is not required by FOIA to create a new public record in order to respond to a FOIA request, I conclude that DAPE was not required to provide the information in that format per your request. As such, DAPE did not violate FOIA by directing you to a public webpage containing all public records responsive to your request. [35]

CONCLUSION

As set forth above, email addresses of Delaware’s registered professional engineers are protected by the common law right of privacy, as the individuals’ privacy interest in that information is not outweighed by any competing public interest. Moreover, FOIA does not require a public body to convert existing information into a particular format, thereby creating a new public record, in order to respond to a FOIA request. As such, it is my determination that DAPE did not violate FOIA as alleged in the Petition. Your request that this Office file suit on your behalf is therefore denied.

Very truly yours,

/s/ LaKresha S. Roberts

LaKresha S. Roberts

Chief Deputy Attorney General

cc:

Catherine T. Hickey, Deputy Attorney General (via email)

Patricia Davis, Deputy Attorney General (via email)

Michelle E. Whalen, Deputy Attorney General (via email)

[1] As noted by the United States Supreme Court in McBurney v. Young , 133 S.Ct. 1709 (2013), Delaware’s FOIA is a citizens-only statute. As such, and as this Office has previously noted, the protections afforded by Delaware’s FOIA are guaranteed only to Delaware citizens. See Del. Op. Att’y Gen. 16-IB20, 2016 WL 588776, at *1 (Sept. 30, 2016), (“Because compliance with Delaware’s FOIA is mandatory only with respect to citizens of the State of Delaware, we conclude that [Office of the Delaware State Banking Commissioner] did not violate FOIA when it denied your July 23, 2015 request for records on the basis that you are not a Delaware citizen.”). Here, you have said nothing to contradict DAPE’s assertion that you are a resident of the State of Ohio. As such, while I have decided to issue a determination regarding the merits of your claim, I feel compelled to note that you may lack standing to avail yourself to the enforcement provisions contained in 29 Del. C. § 10005, including the petition process set forth in Section 10005(e).

[2] Petition at 1.

[3] Id .

[4] Id .

[5] Email from P. Abshagen to N. Georgalis dated August 30, 2016 (3:05 PM).

[6] Email from N. Georgalis to P. Abshagen dated August 30, 2016 (3:24 PM).

[7] Id .

[8] Petition at 2.

[9] Email from N. Georgalis to P. Abshagen dated August 30, 2016 (3:49 PM).

[10] Petition at 1.

[11] Response Letter at 1-2.

[12] Id . at 3.

[13] Id .

[14] Id . at 4.

[15] 29 Del. C. §10002(l).

[16] See Barberi v. News-Journal Co. , 189 A.2d 773, 774 (Del. 1963).

[17] Guthridge v. Pen-Mod, Inc. , 239 A.2d 709, 714 (Del. Super. 1967).

[18] Id .

[19] Del. Op. Att’y Gen. 13-IB03, 2013 WL 4239232, at *3 (July 12, 2013) (citing Del. Op. Att’y Gen. 10-IB09, 2010 WL 3708657 (Sept. 2, 2010)).

[20] 1996 WL 751553 (Dec. 11, 1996).

[21] Id . at *1.

[22] Id .

[23] Id .

[24] Response Letter at 4.

[25] Id .

[26] Id .

[27] Id . at 4.

[28] Id .

[29] See U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press , 489 U.S. 749, 772 (1989) (holding that the applicability of FOIA will “turn on the nature of the requested document and its relationship to the basic purpose of [FOIA] to open agency action to the light of public scrutiny, rather than on the particular purpose for which the document is being requested”).

[30] I note that DAPE argues that here, as in Del. Op. Att’y Gen. 96-IB33, your “FOIA request is a clear attempt to further the requestor’s private commercial interests.” Response Letter at 4. However, as the Delaware Superior Court has warned, “[g]enerally, the motives of the party requesting information from a ‘public body’ are not relevant to the determination of whether that party is entitled to access public records under FOIA.” See ACLU of Del. v. Danberg , 2007 WL 901592, at 3 (Del. Super. March 15, 2007). Moreover, this Office has warned that “[t]o inquire into a requestor’s purpose would turn FOIA into a battleground for disputes” and “frustrate the state’s purpose of ‘easy access to public records.’” Del. Op. Att’y Gen. 06-IB09, 2006 WL 1779490, at 5 (Apr. 25, 2006) (citing 29 Del. C. § 10001)). As such, for purposes of this determination, I have given no weight to DAPE’s argument regarding your purpose in seeking this information.

[31] I note that, in your email correspondence with DAPE’s Executive Director, you cited to 29 Del. C. § 10003(i)(1) for the proposition that DAPE must provide you with the requested email addresses. However, you appear to have misinterpreted that provision, as it applies to the email records of public bodies and not, as you suggest, to the email addresses of private individuals.

[32] Response Letter at 2-3.

[33] Id . at 3.

[34] Del. Op. Att’y Gen. 06-IB17, 2006 WL 2630107, at *7 (Aug. 21, 2006).

[35] See Del. Op. Att’y Gen. 16-IB22, 2016 WL 6684919, at *2 (Oct. 24, 2016) (finding no FOIA violation where public body directed requesting party to public webpage containing all responsive public records).