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Delaware Department of Justice
Attorney General
Kathy Jennings

 Archived Posts From:  December 2002

02-IB33: FOIA Complaint Against Town of Camden

The Complainant alleged that the Town of Camden (“the Town”) violated FOIA by: (1) meeting, without notice to the public, prior to a meeting scheduled for August 5, 2002, to discuss a conditional use application by your client, Barclay Farms; (2) having two members of the Town Council meet without notice to the public to discuss the Barclay Farms application on August 21, 2002; and (3) the Town denying you access to public records regarding the August 21, 2002 meeting. Held: the Town Council violated FOIA: (1) by meeting in executive session on May 9 and September 3, 2002 for a purpose not authorized by law; (2) by not complying with the procedures required by FOIA for going into executive session at those two meetings; (3) by failing to maintain minutes of those two meetings; and (4) by failing to make publicly available records pertaining to those meetings. As a consequence of these serious FOIA violations, any action taken by the Town Council with regard to Barclay Farms at the meeting on September 9, 2002 is invalid because it was tainted by prior violations of the open meeting law.

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02-IB34: FOIA Complaint Against the Town of South Bethany

The Complainant alleged that the Town of South Bethany (“the Town”) violated FOIA by failing to provide public record access to your requests for public records. Held: the town’s resolution dated July 27, 2001 is hereby declared unenforceable. The town is directed to adopt a public document access policy consistent with FOIA, this opinion and the various published rulings of this office as reflected in the FOIA Manual published by this office no later than February 28, 2003.

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02-IB32 Re: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying his request for “copies of letters sent by the law firm of Kirkland & Ellis to the News Journal regarding Sherry Freeberry’s Statement of Financial Interest.” The County claims these records are exempt from disclosure under FOIA because “[t]hese letters related directly to potential litigation and were prepared by the County Attorney’s designee.” Held: the County has failed to meet its burden of proof to justify withholding these records from the public. The purpose of FOIA’s potential litigation exemption is to prevent a party from using FOIA in lieu of the discovery rules to obtain information outside the judicial process. For the exemption to apply, the public body that is the custodian of the records must show objective criteria that litigation is likely, and a sufficient nexus between the records and the subject matter of any potential litigation. See Att’y Gen. Op. 02-IB30 (Dec. 2, 2002).

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02-IB31: FOIA Complaint Against Sussex County Council

The Complainant alleged that Sussex County (“the County”) violated FOIA by: (1) discussing matters of public business at a meeting on October 1, 2002 without proper notice to the public; and (2) charging an unreasonable fee ($10.00) for a copy of the County’s comprehensive land use plan. Held: (1) the agenda item sufficiently alerted the public that the Council would be discussing proposed changes to the comprehensive land use plan: and (2) $10.00 is a reasonable amount to charge for copying under FOIA. See Att’y Gen. Op. 94-IO13 (Mar. 15, 1994) (fifty cents per page reasonable).

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02-IB30 RE: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying your request for “a copy of all documents which were prepared for, relied upon, or handed out to participants and/or any County employees at the special meeting held by the County Executive on Thursday, July 11, 2002 at 4 p.m. in the Executive Conference Room at the County Government Center.” By letter dated August 6, 2002, the County denied your request. Held: the County did not violate FOIA by withholding the personal notes prepared by Mr. Baker for the July 11, 2002 meeting because they are not “public records” as defined by FOIA. We determine that the County violated FOIA by not providing you with access to the remaining documents you requested because the County has failed to meet its burden of proof that those documents are within the potential litigation or other exemption under FOIA.

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