Can a Delaware state employee use FOIA to get her own ADA accommodation records from her employer?

Official title

18-IB13 3/6/2018 FOIA Opinion Letter to Ms. Fleur McKendell re: FOIA Complaint Concerning the Department of Insurance

Plain-English summary

Fleur McKendell, a Department of Insurance (DOI) employee, filed a FOIA request for electronic correspondence about her own ADA accommodation requests, naming specific DOI and AG's office employees whose email accounts she believed held responsive messages. DOI denied the request, citing FOIA's exemption for personnel, medical, or pupil files whose disclosure would invade personal privacy.

The AG upheld the denial. Because the requested emails concerned McKendell's own ADA accommodation process, they fell within the personnel-file privacy exemption regardless of the fact that she herself was the one asking. The AG noted that McKendell's own petition seemed to acknowledge the sensitive nature of the records, since she described DOI as denying her "access to confidential information pertaining to [herself]." The AG did not need to reach DOI's alternative argument based on federal regulations, having found the personnel-file exemption sufficient on its own, and pointed out that FOIA is not the only possible avenue for an employee to obtain her own personnel-related records, suggesting she consult an attorney about entitlements that might exist under other law.

Currency note

This opinion was issued in 2018. 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

Can a Delaware state employee use FOIA to get a copy of her own personnel or accommodation records?

Not necessarily, according to this opinion. FOIA's personnel-file exemption applied to emails about the employee's own ADA accommodation process even though she herself was the requester, since the exemption is defined by the nature of the record, not by who is asking for it.

If FOIA doesn't apply, does that mean an employee has no way to get her own HR records?

Not according to this opinion. The AG was careful to say only that FOIA does not provide access, and specifically suggested the employee consult counsel about whatever entitlement might exist under other laws, separate from Delaware's public-records statute.

Does it matter that the employee described the records as "confidential" herself?

The AG treated that description as reinforcing its conclusion, noting the requester's own petition characterized the withheld material as confidential information about herself, which the AG read as consistent with treating it as an exempt personnel file.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, defines "public record" broadly under § 10002(1), but excludes "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy" (§ 10002(1)(1)) and records exempted by other statute or common law (§ 10002(1)(6)). A public body must make actual public records available for inspection during business hours (§ 10003(a)(1)), but records that don't meet FOIA's "public record" definition in the first place are simply outside the statute's reach, meaning a denial of such records cannot be a FOIA violation. A citizen may petition the AG under § 10005(e) to test that determination. This opinion also flagged, without resolving, that Delaware employment-related statutes such as 19 Del. C. §§ 731 and 732 might independently bear on an employee's access to her own personnel information, separate from FOIA.

Citations

• 29 Del. C. §§10001-10007 (Delaware FOIA)
• 29 Del. C. §10005 (petition procedure generally)
• 29 Del. C. § 10002(1) (definition of "public record")
• 29 Del. C. § 10002(1)(1) (personnel/medical/pupil file privacy exemption)
• 29 Del. C. § 10002(1)(6) (records exempted by other statute or common law)
• 29 Del. C. § 10003(a)(1) (public records open to inspection during business hours)
• 29 Del. C. § 10005(e) (citizen petition for AG determination)
• 19 Del. C. §§ 731 and 732 (referenced as a possible non-FOIA basis for records access)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/03/07/18-ib13-3-6-2018-foia-opinion-letter-ms-fleur-mckendell-re-foia-complaint-concerning-department-insurance/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/03/Attorney-General-Opinion-No.-18-IB13.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB13
March 6, 2018

VIA U.S. MAIL & EMAIL

Fleur McKendell

44 East Fred Circle
Camden, DE 19934
[email protected]

Re: FOIA Correspondence Concerning the Delaware Department of Insurance

Dear Ms. McKendell:

I write in response to your correspondence alleging that the Delaware Department of
Insurance violated the public records provisions of Delaware's Freedom of Information Act, 29
Del. C. §§10001-10007 ("FOIA"). I 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 ("Petition"). Specifically, you allege that DOI violated FOIA by denying your request for
certain records.[1] For the reasons set forth below, it is my determination that DOI did not violate
FOIA as alleged.

On or about February 3, 2018, you sent a FOIA request to DOI for "any and all electronic
correspondence to the request, review, processing, approval or denial of Fleur McKendell's (self)
ADA accommodation requests dated from 8/1/2017 through 2/3/2018. The State of Delaware
Microsoft Outlook email accounts that would likely prove responsive to this request include but
are not limited to: Fleur McKendell (Department of Insurance), Frank Pyle (Department of
Insurance), Jenifer Vaughn (Department of Insurance), Stuart Snyder (Department of Insurance)
and Jessica Willey (Attorney General's Office and Department of Insurance), certain information
related to your employment." On February 23, 2018, DOI denied your request pursuant to 29 Del.
C. § 10002(1)(1), which provides that "[a]ny 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" is not a public record.

"Public record," as defined by FOIA, "is information of any kind, owned, made, used,
retained, received, produced, composed, 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, regardless of the physical form or characteristic by which such information is
stored, recorded or reproduced."[2] However, the statute also provides that certain categories of
information "shall not be deemed public."[3] Among those categories of information that are
exempted from FOIA's definition of "public record" is "[a]ny personnel, medical or pupil file, the
disclosure of which would constitute an invasion of personal privacy."

Importantly, Delaware's FOIA provides that "[a]ll public records shall be open to
inspection and copying during regular business hours by the custodian of the records for the
appropriate public body."[4] In other words, if a record meets FOIA's definition of "public record,"
then the public body must make the record available for inspection and copying to any Delaware
citizen who requests access thereto. Similarly, if the record does not meet FOIA's definition of
"public record," then Delaware's FOIA does not mandate its disclosure and a public body cannot
be found to have violated FOIA for failing to disclose the record in response to a FOIA request.
Of course, that is not to say that the requesting party has no legal entitlement whatsoever to the
requested records. However, any such entitlement would have no basis in Delaware's FOIA and
is therefore beyond the scope of our role in this context.

Here, the record demonstrates that you requested information from DOI pursuant to
Delaware's FOIA. Similarly, you have invoked the petition process contained in 29 Del. C. §
10005(e) to challenge DOI's response. Section 10005(e) requires me to issue a written
determination of whether a FOIA violation has occurred.[5] Under the circumstances, I am satisfied
that the requested information is exempted from FOIA's definition of "public record" pursuant to
29 Del. C. § 10002(1)(1).[6] Indeed, you appear to acknowledge the confidential nature of the
records, as you have specifically alleged that DOI has denied you "access to confidential
information pertaining to [your]self." Accordingly, it is my determination that DOI did not violate
FOIA in denying your request. You may wish to consult with counsel regarding your entitlement,
if any, to any of the requested records outside of the FOIA context.[7]

Very truly yours,

Aaron R. Goldstein
Chief Deputy Attorney General

cc: Kathleen Makowski, Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)

[1] Your Petition included additional allegations concerning DOI that are beyond the scope of
FOIA and, as a result, are not addressed herein.

[2] 29 Del. C. § 10002(1).

[3] Id.

[4] 29 Del. C. § 10003(a)(1) (emphasis added).

[5] See 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.") (emphasis added).

[6] I note that DOI has also invoked specific provisions of the Code of
Federal Regulations. However, having determined that the requested information is exempted from
FOIA pursuant to 29 Del. C. § 10002(1)(1), I need not consider whether the information is also
exempted pursuant to 29 Del. C. § 10002(1)(6) (exempting "[a]ny records specifically exempted
from public disclosure by statute or common law").

[7] See, e.g. 19 Del. C. §§ 731 and 732.