January 4, 2006
Civil Division-Kent County (739-7641)
06-IB01
Mr. John R. Weaver, Jr., Esquire
831 North Tatnall Street, Suite 200
Wilmington, DE 19801

Re: Freedom of Information Act Complaint
        Against City of Wilmington Board of License
        and Inspection Review

Dear Mr. Weaver:
On November 8, 2005, our Office received your complaint under the Freedom of
Information Act, 29 Del. C. Ch.100 (“FOIA”), alleging that the City of Wilmington Board of License
and Inspection Review (“the Board”) violated the open meeting requirements of FOIA by meeting
in private on May 9, 2005 to decide an appeal by your client, 801 Shipley Street, for a one-time
waiver of a vacant building registration fee.
By letter dated November 15, 2005, we asked the City of Wilmington to respond to your
complaint by November 28, 2005. We granted the City’s request for an extension of time and
received their initial response to your complaint on December 5, 2005. On December 14, 2005, we
asked the City for supplemental information, which we received on December 16, 2005. On
December 28, 2005, we asked the City for additional information, which we received on December
29, 2005. On January 3, 2005, we telephoned you for additional information in order to complete our investigation.
In the City’s initial response to your complaint dated December 5, 2005, the City
acknowledged that on May 9, 2005 the Board “did deliberate the merit of cases that were before it
in an executive session and out of the purview of the public” for a purpose not authorized by FOIA
for private discussion. In mitigation, the City contends “this was done inadvertently and not with
malicious intent by the Board. The Board clearly articulated the basis of its decision in its October
18, 2005 letter to the complainant. At worse, it was harmless error for the Board to deliberate in
executive session.”
In a supplemental response to your complaint dated December 13, 2005, the City argues that
your complaint is barred by the statute of limitations under FOIA. According to the City, you were
“aware of the alleged improper action as early as May 9, 2005” and therefore you were “required
under FOIA to file [your] complaint” within sixty days of that date (prior to July 9, 2005).

RELEVANT STATUTES

 FOIA requires that “[e]very meeting of all public bodies shall be open to the public except
those closed” as authorized by statute for executive session. 29 Del. C. §10004(a).

 FOIA authorizes a public body to discuss matters of public business privately in executive
session for nine specific purposes. See 29 Del. C. §10004(b)(1)-(9).
FOIA provides that “[a]ny action taken at a meeting in violation of this chapter may be
voidable by the Court of Chancery. Any citizen may challenge the validity under this chapter of any
action of a public body by filing suit within 60 days of the citizen’s learning of such action but in no
event later than 6 months after the date of the action.” 29 Del. C. §10005(a).
LEGAL AUTHORITY
A. Statute of Limitations
Our Office has taken the position that the time limitations “in Section 10005 [of FOIA] do
not apply to the Attorney General because the statute of limitations does not run against the
sovereign.” Att’y Gen. Op. 02-IB10 (Apr. 24, 2003). The sixty day/six month statute of limitations
in Section 10005(a) applies only to suits a citizen may bring in Chancery Court. It does not apply
to complaints under Section 10005(e) brought to the Attorney General’s office for administrative
review.
Our Office, however, has consistently declined to investigate FOIA complaints of a violation
of the open meeting laws where the alleged violation took place more than six months before the
complaint was received by our Office. “As a general rule, for fairness and practical reasons, we do
not investigate events that occurred more than six months before we received the complaint.” Att’y
Gen. Op. 02-IB10 (Apr. 24, 2002). Accord Att’y Gen. Op. 05-IB26 (Aug. 29, 2005); Att’y Gen. Op.
94-IO16 (Apr. 7, 1994); Att’y Gen. Op. IO28 (Sept. 21, 1993); Att’y Gen. Op. 93-IO06 (Mar. 5,
1993).
Your complaint alleges that the Board violated the open meeting law on May 9, 2005 when
it met in executive session for a purpose not authorized by law. Our Office received your complaint
on November 8, 2005. Because your complaint falls within our six-month rule, we have investigated
and will make a written determination under Section 10005(e) of FOIA.
B. May 9, 2005 Executive Session
The City provided us with a copy of the notice and agenda for the May 9, 2005 meeting of
the Board. The agenda listed fourteen property matters, including “801 Shipley Street” which is the
subject of your complaint.
According to your complaint, “[d]irectly following the hearing, my client remained in the
council room where the hearings were held to view the deliberations of the Board. The Board
refused to permit my client to remain and told the officer of my client to leave. The doors were
closed behind him and deliberations occurred in private.”
The City provided us with a copy of the Board’s case decision in the matter of 801 Shipley
Street (a letter dated October 18, 2005). The Board denied your client’s request for a one-time
waiver of the vacant building registration fees “because the property has been occupied or leased for
the entire period stated in the Vacant Property Registration Statement.”
The City acknowledges that none of FOIA’s nine exceptions for executive session would
cover the deliberations of the Board about a waiver of building registration fees. Delaware law does
not recognize a “deliberate process” privilege for public bodies like the Board. See Chemical
Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-
K, 1994 WL 274295, at p. 12 (Del. Ch., May 19, 1994) (rejecting the board’s claim of a “deliberative
process privilege for which no support exists in FOIA or in Delaware case law”). The General
Assembly has authorized a few public bodies to deliberate in private, but they are the exception
under FOIA. See 29 Del. C. § 10004(h) (Board of Pardons and Parole, Violent Crimes
Compensation Board, Human Relations Commission, Industrial Accident Board, and Tax Appeals
Board).
We determine that the Board violated the open meeting requirements of FOIA when it met
in executive session on May 9, 2005 to discuss the 801 Shipley fee waiver appeal for a purpose not authorized by statute.
C. Remediation
In the past, when we have found a violation of the open meeting law, we directed remediation
if a public body has taken action on a matter affecting “substantial public rights.” Ianni v.
Department of Elections of New Castle County, 1986 WL 9610, at p. 6 (Del. Ch., Aug. 29, 1986)
(Allen, C.). We have previously determined that substantial public rights may be affected by the
expenditure of public money,1 hiring key personnel, 2 and actions affecting the right to vote. 3
In several cases, we have directed remediation where a public body violated the open meeting
requirements of FOIA and took official action affecting land use. See Att’y Gen. Op. 05-IB15 (June
20, 2005) (approval of a residential subdivision); Att’y Gen. Op. 05-IB24 (Aug. 18, 2005)
(compliance with zoning requirements); Att’y Gen. Op. 02-IB23 (Dec. 23, 2002) (conditional use
exception for senior citizen retirement community).
According to the City, the vacant building registration fee assessed by the Board on the 801
Shipley property was $7,000. According to you, the amount of the fee is $13,500. Whatever the
correct amount, this is a substantial right which would normally require remediation by our Office.
You have confirmed, however, that the matter is now pending before the Superior Court in a “city munition” action and that the Court has temporarily blocked the sheriff’s sale of the 801 Shipley
property pending review on the merits by the Court.
Under these circumstances, we decline to exercise our discretion to require remediation by
the City of the Board’s violation of the open meeting requirements of FOIA. The Superior Court
could rule in your client’s favor on the merits in the munition action, or you could petition the
Superior Court in the pending action to invalidate the Board’s decision based on an admitted
violation of the open meeting law. See Goicuria v. Industrial Accident Board, No. 1356-K, 1997
WL 599514, at p. 2 (Del. Ch., Aug. 28, 1997 ) (Jacobs, V.C.) (“the Superior Court has the power to
consider, in addition to any substantive grounds for appeal, procedural claims that the Board violated
FOIA”).
CONCLUSION
For the foregoing reasons, we determine that the Board violated the open meeting
requirements of FOIA by meeting in executive session on May 9, 2005 to discuss the 801 Shipley
fee waiver appeal for a purpose not authorized by statute.
Our Office does not direct any remediation for this violation because the matter of the vacant
building registration fee is currently before the Superior Court. If the Court decides in your client’s
favor on the merits, then that will moot any issue of remediation for a FOIA violation. Alternatively,
since the Superior Court has already entertained jurisdiction over the merits of the matter, the Court
also has jurisdiction to decide any procedural claim that the Board violated the open meeting
requirements of FOIA.
The City has advised that since December 19, 2005, the Board has begun to conduct its
deliberations in public, so we trust that this issue will not arise in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Keith R. Brady, Esquire
Assistant State Solicitor
cc:
The Honorable Carl C. Danberg
Attorney General
Malcolm S. Cobin, Esquire
Chief Deputy Attorney General
Lawrence W. Lewis, Esquire
State Solicitor
Brenda James-Roberts, Esquire
First Assistant City Solicitor
Phillip G. Johnson
Opinion Coordinator

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