Opinion
Civil Action No. 18679
Date Submitted: November 8, 2001
Date Decided: January 3, 2002
David L. Finger, Esquire, Wilmington, Delaware, Attorney for Plaintiffs.
Rosemaria Tassone, Esquire, CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
On these cross-motions for summary judgment, this court is asked to determine whether certain traffic accident reports compiled by the Wilmington Police Department must be disclosed to a private citizen under Delaware's Freedom of Information Act ("FOIA"). Whenever a non-minor traffic accident occurs in the State of Delaware — i.e., one involving an impaired driver, personal injury or death, or apparent property damage of $1,500 or more — police agencies are required by 21 Del. C. § 4203(d) to complete and file a "Uniform Traffic Collision Report" (or "Report") with the state Department of Public Safety (the "Department") By statute, "accident reports . . . shall be for the information of the Department of Public Safety and shall not be open to public inspection."
29 Del. C. § 10001 et seq.
21 Del. C. § 4203(d). The original dollar threshold was $1,000, but has been increased annually since January 1, 1997 by $100 per year, to a maximum of $1,500. 21 Del. C. § 4203(f).
Id. § 313(b).
Some police agencies, like the Wilmington Police Department (the "City"), apparently go beyond the statutory reporting requirements and submit a Report to the Department of Public Safety for every traffic accident reported by a driver within their jurisdiction. In practice, then, some of the Reports filed by the City are not statutorily mandated — that is, they do not meet one of the reporting requirements in § 4203(d) (collectively, "the § 4203(d) Reporting Threshold"). These "Non-Mandatory Reports" are the subject of this dispute.
Plaintiff Bryant Jacobs had been using FOIA to acquire City traffic accident Reports to market his chiropractic business. Using biographical information contained in the Reports, he phoned victims and offered them an evaluation. In recent months, however — after a resident's complaint — the City began redacting information relating to the identity of those mentioned in the Reports. Jacobs contends that under FOIA, he is entitled to full, unredacted access to these Non-Mandatory Reports.
I disagree. Because Jacobs's argument is inconsistent with the statutory promise of confidentiality for reports of traffic accidents made by drivers under the statutory reporting scheme, I hold that the Non-Mandatory Reports are specifically exempted from public disclosure. As such, per 29 Del. C. § 10002(d)(6), they are not public records subject to disclosure under FOIA.
I. Factual Background
Since 1998, Bryant Jacobs has operated several chiropractic-related entities in Delaware, including the 4th Street Chiropractic Clinic and the Delaware Medical Group (collectively, "DMG"). Jacobs contends that DMG is also a research entity, ostensibly charged with studying the effects of low-impact collisions on drivers and passengers. The research is "intended to be used, in conjunction with prior studies by others, to challenge the actions of the insurance industry in dealing with chiropractic and other medical professionals who treat victims of such collisions."
Another Jacobs-related entity, Back-to-Health Chiropractic, Inc., was dismissed as a party to this action by stipulation on May 17, 2001. Because he is the principal for each of the remaining entities, I generally refer only to Jacobs.
Jacobs Op. Br. at 2.
But commerce, not science, appears to be Jacobs's principal passion. In December of 1999, in an effort to solicit business for DMG, he hired an individual to obtain Reports from the City under FOIA. Using the biographical data contained therein, Jacobs "cold-called" the persons involved in those accidents by reading from a prepared script. His pitch went as follows:
Good morning/afternoon. May I speak to Mr./Mrs. ______. My name is Bryant Jacobs. I'm with the Delaware Medical Group. My call regards your automobile accident, and I'm calling to see how you are feeling as a result of the accident you were in. How do you feel? Delaware Medical Group specializes in assisting those people who have been injured in an auto accident, but first let me explain how I got your name and number, then I'll explain the nature of my call.
Anytime there's an accident in the State of Delaware, the police prepare a report. Based on the Delaware statute, we are privy to the information that the officers have provided; therefore, we give you a courtesy call to see how you are feeling. If you tell me that you are hurt, we then invite you in to our clinic for a comprehensive orthopedic and neurological examination. It does not cost you any out[-]of[-]pocket money at all. Insurance covers all costs.
Id. at 3 (emphasis added).
If they were so inclined, accident participants were then scheduled for an appointment at DMG. No mention was made of a scientific study.
After six months of using a middle-man, Jacobs decided to procure the Reports for himself On numerous occasions, he filled out FOIA request forms and filed them with Jet Cherry, the records coordinator for the records division of the Wilmington Police. As gatekeeper for the request, Cherry would scrutinize the forms to ensure that their stated purpose was, in her view, appropriate. If she had a question as to their appropriateness, she would refer inquiries to the City's law department. In the request forms, Jacobs represented that he was with DMG. Under the section marked "Purpose for Request," he stated that the "[i]nformation is utilized for educational purposes."
Exs. A-I and A-2 of Defi Br. In Sup. of Cross-Motion for Summary Judgment.
Jacobs's business-solicitation strategy did not go over well with at least one putative beneficiary of his phone calls. In January of 2001, Rosalie O. Rutkowski reportedly received a call from someone representing himself to be part of a chiropractic business on 4th Street in Wilmington. Rutkowski was "offended and distressed" by the solicitation, and called the Wilmington Police Department to complain about the release of what she perceived to be personal information.
In a rather unusual argument, Jacobs claims he never called Rutkowski, contending that he targets for his clinic only individuals whom he believes are of African-American descent. Since Rutkowski has a name Jacobs contends is not normally associated with African-Americans, Jacobs asserts that he never would have called her. This factual dispute has no bearing on my ultimate disposition of this case.
Rutkowski Aff. ¶ 13.
Her complaint wound up in the hands of Captain Victor Ayala, Cherry's supervisor. Acting on advice from the City law department, Captain Ayala instructed records office staff to redact all personal information from requested accident reports, unless the requesting party was one of the persons involved in the accident or a representative of one of their insurance companies.
The redacted information included the participant's name, address, phone number, social security number, date of birth, driver's license number, and vehicle registration number. See Exs. of Aff. of Sgt. Robert Transue; Ayala Dep. at 6.
Jacobs has commenced an action seeking full, unredacted access to the Non-Mandatory Reports — e.g., those Reports filed for accidents where the § 4203(d) Reporting Threshold has not been met. Jacobs contends that though the plain language of § 4203's "companion" statute, 21 Del. C. § 313, states that "accident reports . . . shall be for the information of the Department of Public Safety and shall not be open to public inspection," the "reports" referenced in that provision refer only to Mandatory Reports — that is, those produced for accidents meeting the § 4203(d) Reporting Threshold. On August 9, 2001, Jacobs filed a motion for summary judgment in this case. On September 24, 2001, the City cross-moved for summary judgment.
II. Legal Analysis A. Standard for Cross-Motions for Summary Judgment and Other Preliminary Issues
A motion for summary judgment shall be granted where the court's review of the record demonstrates that there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. The mere fact that there are cross-motions for summary judgment does not act by itself as a concession that no factual issues In this case, however, I find there is no material factual dispute precluding me from entering summary judgment at this time.
Williams v. Geier; Del. Supr., 671 A.2d 1368, 1375 (1998).
United Vanguard Fund. Inc. v. Takecare. Inc., Del. Supr., 693 A.2d 1076, 1079 (1997).
I note also at the outset that there is nothing, in itself, improper about the use for which Jacobs put the information he gleaned from the Reports. Commercial speech is protected under the First Amendment to the United States Constitution. Rather, the question before me requires me not to look at the purposes for which Jacobs used the Reports, but solely whether the Non-Mandatory Reports are public records as contemplated by FOIA. For the reasons described below, I conclude that they are not.
The fact that Jacobs falsely asserted to the City that he was using the reports "for educational purposes" is, of course, another matter entirely.
Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976); Edenfield v. Fane, 507 U.S. 761, 767 (1993).
B. The Structure of Delaware's Freedom of Information Act
Delaware's FOIA is designed to in part to ensure that "citizens have easy access to public records in order that the society remain free and democratic." To that end, all documents defined as "public records" under FOIA are broadly open to inspection and copying "by any citizen of the State," and "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen."
29 Del. C. § 10001.
Id. § 10003(a).
The term "public record," defined in 29 Del. C. § 10002(d), is broadly hewn to include
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.
Delimiting that broad definition, however, are fourteen specific types of documents which are specifically deemed not to be public records. Among them is § 10002(d)(6), which states that "[a]ny records specifically exempted from public disclosure by statute or common law" shall not be considered a public record.
C. As Records Specifically Exempted From Public Disclosure By Statute. The Non-Mandatory Reports Are Not Required to Be Disclosed Under FOIA
Jacobs's argument is one of statutory construction; he contends that despite the mandate in § 313(b) that "accident reports . . . shall be for the information of the Department of Public Safety and shall not be open to public inspection," I should read that language as applying only to those Reports filed with the Department regarding accidents meeting the § 4203(d) Reporting Threshold. In my view, this approach violates the "Golden Rule" of statutory construction.
That Rule holds that "unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result." State Dep't of Correction v. Worsham, Del. Supr., 638 A.2d 1104, 1107 (1994), citing Coastal Barge Corp. v. Coastal Zone Indus. Ctrl. Bd., Del. Supr., 492 A.2d 1242, 1247 (1985), 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSRTRUCTION, § 45.12 (5th ed. 1992).
An examination of the statutory scheme governing the reporting of traffic accidents makes this point clear. Whenever a traffic accident occurs in this state, Title 21, Chapters 42 and 3 of the Delaware Code work in tandem to trigger a series of duties required to be carried out by drivers, police agencies, and the Department. Because the sections within these Chapters are sequential and mutually referential, these sections are most appropriately viewed together.
See 21 Del. C. § 4201-03 (sequence of duties of drivers in accident).
See id. § 4203 (reference to compliance with §§ 4201, 4202); § 313(b) (companion to § 4203(d)).
Generally speaking, the Department is charged with collecting, analyzing, and publishing summaries about the cause and frequency of traffic accidents — in essence, serving as the State's informational repository for roadway safety. The accident Reports the Department receives under the relevant statutes are critical tools the General Assembly has provided the Department to fulfill its informational and analytical objectives.
See Halko v. State, Del. Supr., 204 A.2d 628 (1964) (purpose of § 313 is to permit collection of statistical information as to highway accidents in order to take preventative action).
Most important of all, the requirements pertaining to a driver's statutory responsibilities contain an important promise of confidentiality. The General Assembly has made clear that the Reports the Department receives from agencies "shall be for the information of the Department of Public Safety and shall not be open to public inspection." Indeed, Reports submitted to the Department by police agencies are not admissible in either civil or criminal trials. This promise of confidentiality advances the Department's statutory goal of compiling complete and accurate data regarding accidents in Delaware.
Id. The fact that such reports have been made is admissible solely to prove compliance with this provision.
A driver involved in a traffic accident in Delaware is charged with a series of statutory duties. Whenever an accident apparently results in property damage, the driver must stop, and ascertain whether there was an injury. If another party was indeed injured, the driver must render "reasonable assistance," and provide the other driver with her license and other pertinent information. If there is apparent property damage to the other vehicle, the driver must also stay at the scene of the accident.
14 § 4201(a).
Id. § 4202(a).
See id. § 4201(a).
In addition, after fulfilling the above requirements, 21 Del. C. § 4203 (a) holds that driver of a vehicle involved in an accident must report it to the police whenever (1) injury or death occurs, (2) either driver appears to be impaired by alcohol or drugs, or (3) there is apparent property damage of $500 or more — a threshold substantially lower than the $1,500 § 4203(d) damage threshold. If the $500 damage threshold of § 4203(a) is not met, a driver may still report the accident to the appropriate police agency under the statute.
Id. 4203(b).
Intertwined with these provisions is the following incentive: If a driver fulfills her statutory duties, she can expect that the information she provides to her local police agency will be held in confidence. This incentive is made specific not only by the language of § 313(b), but also by another provision in the very section describing the driver's duty to report accidents. Section 4203(e) states that the Department may request supplemental reports of accidents from either a driver or the police when the original report is, in the Department's view, insufficient. These supplemental reports, by the language of § 4203(e), "shall not be open to public inspection."
In addition — and this point cannot be overstated — the promise of confidentiality cannot be sensibly read to apply only when a "major" accident occurs. First, a driver often has no idea (and indeed, probably does not care) whether the damage resulting from his auto accident will be severe enough to trigger the Departmental reporting requirement set forth in § 4203(d). The driver's rightful expectation is one of privacy for all Reports the driver provides under the Act. It is illogical to read the law as having that expectation hinge on whether an accident resulted in damage of at least $1,500 — a determination drivers cannot reasonably be expected to make. In this respect, I assume that most drivers are not insurance adjusters intimately familiar with the going rates for specific automobile parts and repairs. Adopting Jacobs' interpretation would create an incentive for drivers to avoid reporting arguably marginal accidents, because his interpretation deprives them of the certainty that their cooperation with the statutory scheme will involve the production of a Report that can only be used for specific, statutorily authorized purposes.
Second, from a public policy standpoint, it makes little sense to infer that the General Assembly chose to explicitly make Reports of "major" accidents confidential, while permitting Reports of "minor" accidents to be disclosed. It is in these major accidents — ones involving significant property damage, impaired drivers, and/or injury — that the public arguably has the greatest interest in disclosure. Having made the policy decision that these Reports are not public records, it is difficult to believe that the General Assembly intended that Reports of minor accidents — where the public interest served by disclosure is minimal — would be open for public inspection under FOIA.
The statutory accident reporting scheme pre-dated FOIA and the later adoption of FOIA cannot be reasonably read as drawing the dividing line Jacobs contends exists.
Given the underlying assurance of confidentiality running through Chapters 42 and 3 of Title 21, the only reasonable interpretation is that the General Assembly did not intend to implicitly (and arbitrarily) create a scheme whereby Reports of accidents meeting the § 4203(d) Reporting Threshold are confidential, while those of accidents not meeting that Threshold are public records. Instead, it intended to protect the confidentiality of all Reports generated at the instance of citizens acting in accordance with their statutory reporting duties. I therefore find that because the Non-Mandatory Reports are specifically exempted by the statutory scheme described in Chapters 42 and 3 of Title 21 of the Delaware Code, they are not public records under FOIA per 29 Del. C. § 10002(d)(6). The City thus has no duty to disclose the Non-Mandatory Reports to Jacobs.
III. Conclusion
For the foregoing reasons, the City's motion for summary judgment is granted, and Jacobs's motion for summary judgment is denied. The City shall submit to me a conforming order within seven days, upon approval as to form by Jacobs.