Opinion
C. A. No. 01C-01-039
Submitted: September 18, 2001
Decided: December 28, 2001
UPON CROSS MOTIONS FOR SUMMARY JUDGMENT
DENIED
Michael J. Rich, Esquire, and W. Michael Tupman, Esquire, Deputy Attorneys General, Dover, Delaware, for the State of Delaware.
Richard G. Elliott, Jr., Esquire, and Jennifer C. Bebko, Esquire, of Richards, Layton Finger, Wilmington, Delaware, for the Gannett Co., t/a The News Journal.
ORDER
Upon consideration of the briefs and oral arguments regarding the parties' cross motions for summary judgment, it appears to the Court that summary judgment may not be granted in this matter. There are genuine issues of material fact and no party is entitled to judgment as a matter of law.
Summary Judgment Standard
Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is on the moving party to show, with reasonable certainty, that no genuine issue of material fact exists and judgment as a matter of law is permitted. When considering a motion for summary judgment, the facts must be construed in the light most favorable to the non-moving party. Further, if the record indicates that a material fact is disputed, or if further inquiry into the facts is necessary, summary judgment is not appropriate.
Super.Ct.Civ.R. 56.
See Celotex Corp. v. Cattret, 477 U.S. 317 (1986); Martin v. Nealis Motors, Inc., Del. Supr., 247 A.2d 831 (1968).
McCall v. Villa Pizza, Inc., Del. Supr., 636 A.2d 912 (1994).
Discussion
The history and facts of this case (and of the various statutes at issue herein) have been set forth in prior decisions of this Court and will not be repeated here. Suffice it to say that Plaintiffs, the Board of Managers ("Board") of the Delaware Criminal Justice Information System ("DELJIS"), brought the instant suit for declaratory judgment against the Gannett Co., t/a The News Journal ("The News Journal") to determine whether or not the Board may release certain criminal file information to The News Journal. Under 29 Del. C. § 10002(d), Delaware's Freedom of Information Act ("FOIA"), criminal file data constituting an invasion of privacy cannot be disseminated.
See Gannett Co. v. Delaware Criminal Justice Info. Sys., Del. Super., 768 A.2d 508 (1999), aff'd per curium, Del. Supr., No. 535, 1999, 2000 WL 1769513 (Sept. 14, 2000) (hereinafter "Gannett I"); Bd. of Managers of the Delaware Criminal Justice Info. Sys., Del. Super., C.A. No. 01C-01-039, Witham, J. (Apr. 2, 2001) (ORDER), cert. denied per curium, Del. Supr., No. 145, 2001, 2001 WL 474635 (May 4, 2001) (ORDER); Bd. of Managers of the Delaware Criminal Justice Info. Sys., Del. Super., C.A. No. 01C-01-039, 2001 WL 1198674, Witham, J. (Sept. 14, 2001) (ORDER).
The parties maintain that there is no material dispute regarding the facts and the Court is free to interpret the applicable statutes; however, the Court disagrees. The parties have made the following arguments.
First, the Board has submitted the affidavits of Ronald J. Torgerson, Executive Director of DELJIS, and John P. O'Connell, Jr, Director of the Statistical Analysis Center, stating, respectively, that "The News Journal can identify the individuals in the DELJIS database by name," and can "associate external personal information with arrest histories" so as to "associate names . . . with full criminal histories in the [DELJIS] file."
The Board alleges this can be done by cross-referencing various data sources (e.g. "electronic police blotters" and newspaper articles).
In contrast, The News Journal has submitted the affidavit of Editor, Merritt Wallick, stating that although "it might be possible to match a few very high profile cases to the DELJIS database . . . [for] nearly all other cases, a match would be impossible."
Obviously, a dispute as to whether or not The News Journal can identify individuals is material to interpreting the issue of invasion of privacy under FOIA. Criminal file data constituting an invasion of privacy cannot be disseminated under the statute. Importantly, no evidentiary hearing has ever been held on this issue.
For this reason, the Court will deny the motions for summary judgment, and hold an evidentiary hearing specifically on the issue of whether or not The News Journal can obtain identities of individuals, in any manner, using the information sought from DELJIS. If "it may be possible to deduce a particular individual's name and thereby recreate arrest and/or conviction records by simply cross-referencing . . . it would be improper to permit the dissemination of this information. . . ."
Gannett Co. v. Delaware Criminal Justice Info. Sys. 768 A.2d at 515-16.
Other Issues
In addition to the above, several threshold matters need to be addressed. First, The News Journal contends that the Board and DELJIS are barred from bringing this present declaratory judgment action under the doctrines of Res Judicata, Collateral Estoppel, Waiver and Defense Preclusion. For the reasons outlined below the Court finds that these doctrines do not prevent the present action.Res Judicata
There are five requisites that must be met before res judicata is applied.
1. The court making the prior adjudication must have had jurisdiction over the subject matter of the suit and of the parties to it.
2. The parties to the prior action were the same as the parties, or their privies, in the pending case.
3. The prior cause of action was the same as that in the present case or the issues necessarily decided in the prior action were the same as those raised in the pending case.
4. The issues in the prior action were decided adversely to the contentions of the plaintiffs in the pending case.
5. The prior decree is final.
RSS Acquisition, Inc. v. Dart Group Corp., Del. Super., C.A. No. 99C-05-275, 1999 WL 1442009 at *3-4, Quillen, J. (Dec. 30, 1999) (Letter Op.); see also, Rumsey Elec. Co. v. University of Delaware, Del. Super., 334 A.2d 226 (1975), aff'd per curium, Del. Supr., 358 A.2d 712 (1976).
In the present case, the issues in the prior action were not decided adversely to the contentions of the plaintiffs in the pending case. In fact, the Gannett I court explicitly found for the plaintiff. The court found that the disclosure of the "immense scope" of information requested by The News Journal did "constitute an invasion of privacy;" however, the court did not examine each piece of data requested by The News Journal. For this reason, it was never decided in the prior action whether or not the disclosure of the particular "linking" number at issue here would also constitute an invasion of privacy.
Gannett Co. v. Delaware Criminal Justice Info. Sys., 768 A.2d at 515.
The News Journal has used various terminology throughout this litigation for the type of number, or data field, it seeks. These include the following terms: "surrogate identifier," "linking number," "random identifiers" and "scrambled identifiers." "Linking" number will be used herein to identify the data field at issue.
Collateral Estoppel
Likewise, collateral estoppel is not available. "Under the doctrine of collateral estoppel, if a court has decided an issue of fact that is necessary to its judgment, then that decision precludes relitigation in another lawsuit on a different cause of action involving a party to the first case." The issue of fact in this case (i.e. whether a "linking" number will provide a means to identify individuals) was not necessary to the prior court's judgment in Gannett I. Any particular data field was not relevant to the Gannett I decision, and no evidentiary or factual conclusions were drawn as to the implications of releasing a particular piece of data. The Gannett I decision on the issue of invasion of privacy was based solely on the cumulative effect of The News Journal's 300-plus data field request.
Madanat v. Alpha Therapeutic Corp., Del. Supr., 719 A.2d 489 (1998).
Waiver/Defense Preclusion
The News Journal suggests that by not bringing its current arguments before the court in the prior action, the Board has waived its right to seek a declaratory judgment in the present action. The statutory duties of the Board, and DELJIS administrators, cannot be "waived" simply because there has been prior litigation on the same issues.
The jurisdictional authority for judicial review, and the declaratory judgment action here is 29 Del. C. § 10005, the FOIA "Enforcement" section. FOIA must be construed with the enabling statutes of the Board and DELJIS. Although, it is perhaps troublesome that, since Gannett I, the Board has interpreted the applicable statutes so as to give The News Journal the requested "linking" numbers, and then take them away, the fact still remains that an administrative body cannot be precluded from interpreting its enabling statute, or prevented from performing its duty to enforce and apply statutory mandates.
Under 29 Del. C. § 10002(d)(6).
11 Del. C., Chapters 85 and 86.
Moreover, "[t]here is, of course, no rule of administrative stare decisis. Agencies frequently adopt one interpretation of a statute and then, years later, adopt a different view. This and other courts have approved such administrative `changes in course,' as long as the new interpretation is consistent with [legislative] intent."
Bankamerica Corp. v. United States, 462 U.S. 122, 149, n. 10 (1983) (White, J., dissenting).
See, e.g., United States v. Generix Drug Corp., 460 U.S. 453, 103 S.Ct. 1298, 75 L.Ed.2d 198 (1983) (approving new agency statutory interpretation despite many years of contrary interpretation); NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975) (same); NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953) (same); United States v. San Francisco, 310 U.S. 16, 31-32, 60 S.Ct. 749, 757, 84 L.Ed. 1050 (1940) (same). The rule that an agency can change the manner in which it interprets a statute is often said to be subject to the qualification that, if it makes a change, the reasons for doing so must be set forth so that meaningful judicial review will be possible. See Atchison, T. S.F.R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973) (plurality opinion); 4 K. Davis, Administrative Law Treatise §§ 20:11 (2d ed. 1983).
Vertical Histories
Next, the Court notes that it is undisputed that if a "linking" number is provided to The News Journal, as requested, vertical histories will be established. This has been admitted by The News-Journal, and this is the position of the State. The vertical history will be for a limited time period, but it will provide a "window" or "snapshot" of the criminal record of unnamed individuals for the limited time period of the data request. Since there is no dispute as to this fact, the Court must determine if the dissemination of this information violates either the FOIA statute or Chapters 85 and 86 of Title 11, so as to preclude release of this information. The Court does not decide this issue today, for the reason that if it is proven that The News Journal can cross-reference vertical histories with names, the Court will not need to reach this issue.User Agreements
Finally, the Court addresses The News Journal's argument regarding the effect of a user agreement on the privacy concern here. This issue was addressed in Gannett I. "The fact that The News Journal is amenable to signing a user's agreement in order to prevent data manipulation is of little importance. Rather, the dispositive factor here is the mere possibility of such misuse."
Gannett Co. v. Delaware Criminal Justice Info. Sys., 768 A.2d at 516, n. 9.
Conclusion
The material dispute of fact in this case concerns whether or not The News Journal can take vertical histories and cross-reference them with various other sources (such as The News Journal articles, or arrest warrant database to which The News Journal has access), thereby determining names to go with the vertical histories. The News Journal's position is that there is no way that names can be matched with vertical histories from the DELJIS database. Both sides need to provide evidence beyond mere assertions in affidavits. The State must show how The News Journal can attach a name to a vertical history. Obviously, The News Board of Mangers of the Delaware Criminal Justice Information System C. A. No. 01C-01-039 December 28, 2001 Journal will need to rebut any such proof. Summary judgment in this matter is reserved until such evidentiary submissions are made in this matter.For the foregoing reasons the cross motions for summary judgment are hereby DENIED.