Are professional license applications filed with a Delaware licensing board open to public inspection?

Official title

95-IB12: Re: Freedom of Information Act Committee on Massage/Bodywork Practitioners

Plain-English summary

The Director of the Division of Professional Regulation asked whether the public could inspect application files that people submitted to Delaware's Committee on Massage/Bodywork Practitioners for certification. The Attorney General's office concluded the applications were generally public records, but drew a line at criminal history: any criminal record statements or documents an applicant attached had to be removed or redacted before the file went out under a FOIA request.

The opinion reasoned that FOIA required public inspection of records maintained by public bodies, and the massage/bodywork application wasn't a personnel file, didn't contain privileged financial or commercial information, and didn't include a Social Security number, so nothing about its general content warranted withholding it. Criminal history was different. FOIA's exemption for "criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy" covered any criminal record materials an applicant submitted, even though those same applicants were required to disclose their own criminal history to the Committee so it could confirm they weren't disqualified from certification under a separate statute. The opinion noted an applicant could still get a copy of their own criminal history, since the FOIA exemption existed to protect privacy, not to hide a person's own record from themselves, but the Division could not hand that same material to an outside requester.

Currency note

This opinion was issued in 1995. 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: Could a member of the public get a copy of someone else's massage therapist license application under Delaware's FOIA?
A: Under this opinion, largely yes. The general contents of the application were treated as a public record subject to inspection, since it wasn't a personnel file and didn't contain privileged financial, commercial, or Social Security information.

Q: What part of a licensing application could be withheld?
A: Any criminal history statements or records the applicant included. The opinion found those materials fell within FOIA's exemption for criminal files and records whose disclosure would invade personal privacy, and had to be redacted before the rest of the application was released.

Q: If an applicant has to disclose their own criminal history to get licensed, doesn't that mean the record becomes public once it's in the file?
A: No, according to this opinion. Requiring an applicant to disclose criminal history so the agency can check for disqualifying convictions under a separate statute was a different question from whether that same material became a disclosable public record once submitted. The opinion treated the two as separate, exempting the criminal history from release to outside requesters even though the applicant had to provide it.

Background and statutory framework

Delaware's FOIA was read liberally in favor of disclosure, and the Act established a public right to inspect records maintained by public bodies, 29 Del. C. §§ 10002(d), 10003(a). At the same time, the Act carved out exceptions "intended for the protection of personal privacy," including "criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy," 29 Del. C. § 10002(d)(4). That same provision allowed a person to obtain a copy of their own criminal history, distinguishing self-access from third-party disclosure. Separately, 24 Del. C. § 5310 barred people convicted of certain crimes from obtaining a massage/bodywork certificate, which is why applicants had to disclose their criminal history to the Committee in the first place even though that disclosure wasn't destined for public release. The opinion followed a prior, similarly reasoned 1987 Attorney General opinion (No. 87-IO31) involving licensee files at the Division of Alcoholic Beverage Control, where general licensing information was disclosable but criminal record histories in the same files were not.

Citations and references

Statutes:

• 29 Del. C. §§ 10002(d), 10003(a), public right to inspect records maintained by public bodies
• 29 Del. C. § 10002(d)(4), exemption for criminal files and records, with an exception letting a person obtain their own criminal history
• 24 Del. C. § 5310, bars certain convicted persons from obtaining a massage/bodywork certificate

Cases:

• Delaware Solid Waste Authority v. News-Journal, 480 A.2d 628, 631 (Del. 1984), FOIA's disclosure provisions read liberally, exceptions read as privacy protections
• Providence Journal Co. v. Kane, 577 A.2d 661 (R.I. 1990), Rhode Island Supreme Court decision finding criminal conviction record disclosure implicated privacy concerns

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/03/07/95-ib12-re-freedom-of-information-act-committee-on-massagebodywork-practitioners/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 95-IB12 (Del.A.G.), 1995 WL 794544 ( determining that files of applicants for certification as massage/bodywork practitioners are public records except to the extent such files may contain protected criminal history information or records, which information or records must be removed or redacted prior to disclosure )

Office of the Attorney General

State of Delaware

Opinion No. 95-IB12

March 7, 1995

Re: Freedom of Information Act Committee on Massage/Bodywork Practitioners

*1 Carol Ellis

Director

Civil Division–New Castle County

Division of Professional Regulation

Department of Administrative Services

Silver Lake Office Plaza

Cannon Building

Suite 203

P.O. Box 1401

Dover, DE 19901

Dear Ms. Ellis:

You have asked whether, and to what extent, the public is permitted access to files of applicants for certification filed with the Committee on Massage/Bodywork Practitioners. For the reasons which follow, we conclude that the general information contained therein is subject to public inspection. An applicant’s criminal history statements and records, however, may not be disclosed.

In preparing this opinion, we reviewed the copy of the application you sent with your letter, as well as a copy of the more recent application form, which was previously reviewed by Deputy Attorney General Anne E. Hartnett.

In a prior Attorney General’s Opinion dated November 4, 1987, Opinion No. 87-IO31, the Department of Justice concluded that a licensee’s files with the Division of Alcoholic Beverage. Control was generally subject to public inspection. Nonetheless, that opinion also stated that the criminal record histories contained in those files were not to be disclosed.

The Delaware Freedom of Information Act’s provisions are read liberally in favor of disclosure, whenever possible. Substantively, the Act establishes a public right to inspect all public records maintained by public bodies. 29 Del. C. §§ 10002(d) , 10003(a) , see also Delaware Solid Waste Authority v. News-Journal, Del. Supr., 480 A.2d 628, 631 (1984) . Nonetheless, the law provides several exceptions, most of which are clearly “intended for the protection of personal privacy.” Delaware Solid Waste Authority, supra, 480 A.2d at 631 (1984) . Records which are specifically recognized as not public include “Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy.” 29 Del. C. § 10002(d)(4) . In a Rhode Island case, Providence Journal Co. v. Kane, R.I. Supr., 577 A.2d 661 (1990) , the Court held criminal conviction record disclosures violated privacy concerns and rights.

On the other hand, § 10002(d)(4) of the Delaware FOIA permits a person to obtain a copy of their own personal criminal history. This exception to the exception enables the applicant to provide the Committee with the relevant criminal history to show compliance with 24 Del. C. § 5310 . (That section prohibits persons convicted of certain crimes from obtaining their certificate.)

As currently structured, the information provided in an application filed with this Committee is generally disclosable. It is not a personnel file. It does not provide privileged financial or commercial information from the applicant, and does not use the applicant’s Social Security number. 1 On the other hand, when the application asks the applicant to provide copies of her criminal record, the FOIA’s “criminal record” provisions are implicated.

*2 In our view, therefore, the Delaware FOIA prohibits your Division or the Committee from disclosing the applicant’s criminal history records to those filing FOIA requests for the applications. In other words, the application is disclosable, but the criminal record attachments are not to be disclosed. To the extent an applicant fills out the form with the criminal hisotyr, that form needs to be edited prior to disclosure to others.

If you have further questions regarding this matter, please do not hesitate to contact this office.

Very truly yours,

Frederick H. Schranck

Deputy Attorney General

John K. Welch

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

Footnotes

1
A Federal law prohibits disclosure of Social Security numbers in this context.

Del. Op. Atty. Gen. 95-IB12 (Del.A.G.), 1995 WL 794544

End of Document
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