Complainant alleged that the Smyrna Town Council violated FOIA’s open meeting laws by holding a meeting, which was attended by two council members, without notice to the public to discuss an amendment to the Town’s Charter. The Town argued that the meeting was not a “public meeting” as defined by FOIA because a quorum of the members did not attend, and the two members in attendance did not constitute a subcommittee or ad hock committee subject to open meeting law. HELD: When a public body holds a “joint meeting” of various constituents and members of the public body, the AGs office determines: (i) whether this group of individuals from different organizations amounted to a public body under FOIA; and (ii) if not, whether the representatives present at the meeting constituted an ad hoc or subcommittee of the public body. In this case, the people in attendance at the meeting did not amount to a public body under FOIA. There was also no evidence in the record that suggested the Town appointed or established a committee that was represented at the challenged meeting.Read More
Complainant alleged that the Town of Dagsboro (“Town”) violated FOIA by (i) failing to prepare minutes of executive sessions since June 2004; (ii) providing complainant with redacted copies of executive session minutes after they were prepared almost one year later; and (iii) discussing matters of public business in executive session for a purpose not authorized by law.
Held: (i) The Town violated FOIA by not preparing timely minutes of 11 executive sessions over a one year period. Although FOIA does not set a time limit for a public body to prepare minutes of its meeting, a reasonable time is by the time of the public body’s next scheduled meeting. A public body must be able to explain its failure to prepare and approve minutes in a timely manner; (ii) the burden of proof is on the custodian of records to justify the denial of access to records. The Town failed to meet this burden with respect to most minutes because it did not articulate reasonable and legitimate reasons why public disclosure of the executive session minutes would defeat any lawful purposes for those executive sessions. However, minutes relating to ongoing negotiations regarding a property acquisition could be withheld pursuant to 29 Del. C. §10004(f) until the conclusion of the acquisition; and (iii) FOIA does not authorize a discussion of a personnel handbook and delinquent taxes in executive session. It does authorize discussions involving the hiring and subsequent resignation of a new town administrator in executive session. However, because the alleged FOIA open meetings violations occurred more than six months before the petition, the AGs office will not require remediation. However, the public body must make the minutes of the unauthorized executive session open for public inspection.
Del. Op. Atty. Gen. 06-IB02 (Del.A.G.), 2006 WL 1242011 Office of the Attorney General State of Delaware Opinion No. 06-IB02 January 9, 2006 Re: Freedom of Information Act Complaint Against Town of Dagsboro *1 Mr. William B. Chandler, III 600 Main Street P.O. Box 87 Dagsboro, DE 19939 Dear Mr. Chandler: Our Office received your […]Read More
06-IB01 – RE: F.O.I.A. Complaint Against the City of Wilmington Board of License and Inspection Review
The City of Wilmington Board of License and Inspection Review (“Board”) met in executive session on May 9, 2005 to decide an appeal for a one-time waiver of a vacant building registration fee. The complainant argued that the executive session was improper. The Board argued that complainant’s appeal was not timely and remediation was unnecessary because the decision to meet in executive session was inadvertent and constituted harmless error.
Held: The City of Wilmington Board of License and Inspection Review (“Board”) violated FOIA when it deliberated in executive session for a purpose not authorized by FOIA. Additionally, the decision reached by the Board affected a “substantial right” that would normally require remediation by the AG’s office. However the AG declined to order remediation because the matter was pending before the Superior Court of Delaware and the FOIA claims could be raised in that forum.