06-IB17 Re: Freedom of Information Act Complaint Against State Public Integrity Commission
Complainant alleged that the State Public Integrity Commission violated FOIA by denying him access to lobbying expense reports and financial disclosure reports of public officials in electronic form. HELD: Under FOIA, a public body cannot respond to a request for information in electronic form by supplying paper records containing the same information. FOIA’s public records definition is broad, and an agency cannot withhold public records from disclosure simply b/c the records were created voluntarily, nor can it argue that disclosure is not required because no statute requires the creation/maintenance of the record. An existing electronic database is a public record separate and distinct from the underlying records used to compile the database. Additionally, records in the custody of private vendors but accessible by the public body are subject to disclosure under FOIA. However, FOIA does not require the creation of a record in a specialized format specified by the requesting party. FOIA does not require the public body to convert hard copies onto a CD either. FOIA only requires the public body to make the hard copy reports available to a requesting party for photocopying or scanning.
Read More06-IB16: Re: Freedom of Information Act Complaint Against Town of Smyrna
Complainant alleged that four members of the Smyrna Town Council violated FOIA by meeting privately to discuss a matter of public business. The four members denied meeting to discuss public business, but submitted affidavits swearing that they each contacted the Town manager separately to raise similar concerns. HELD: A constructive quorum may occur when the members of a public body, sufficient in number to constitute a quorum, engage in an interactive exchange of thoughts and opinions and the members are asked to vote or adopt a particular point of view or reach a consensus on what action to take. In this case, there were several one-on-one discussions between three members of the Council, but those serial discussions did not involve a quorum of the seven member Council so as to trigger the potential application of the open meeting laws.
Read More06-IB15: RE: Freedom of Information Act Complaint Against Brandy wine School District Board of Education
Complainant alleged that the Brandywine School District Board of Education violated FOIA’s open meeting requirements by (i) not providing sufficient notice to the public about the matters the Board would discuss in executive session; (ii) discussing matters of public business in private not authorized by FOIA; and (iii) not preparing adequate minutes of executive session meetings. The Board contended it only discussed job applicants and personnel matters in executive session and the minutes were prepared using the format it uses for executive session and that the form complied with FOIA. HELD: (i) The Board violated FOIA’s notice requirements by not disclosing in the agenda that the Board would discuss the qualifications of job applicants for the position of superintendent; (ii) the Board violated FOIA’s notice requirements by discussing several procedural matters at the meeting which FOIA did not authorize for executive session; but (iii) the format of the minutes of the executive session—which included the names of Board members in attendance, the motion to vote and go into executive session, the general nature of the matters discussed, and the motion and vote to adjourn the executive session–did not violate FOIA b/c they met the minimum requirements of FOIA. There is no clearly implied statutory requirement to summarize the subjects discussed with any degree of specificity in the minutes of executive sessions.
Read More06-IB14 Re: Freedom of Information Act Complaint Against Town of Middletown
Del. Op. Atty. Gen. 06-IB14 (Del.A.G.), 2006 WL 2355968 Office of the Attorney General State of Delaware Opinion No. 06–IB14 July 12, 2006 Re: Freedom of Information Act Complaint Against Town of Middletown *1 Mr. Jeff Bruette 116 Sleepy Hollow Drive, Suite C Middletown, DE 19709 Dear Mr. Bruette: Our Office received your complaint dated […]
Read More06-IB13: Re: Freedom of Information Act Complaint Against Town of Camden
Complainant alleged that the Town of Camden violated FOIA on numerous specific occasions by denying access to public records. HELD: (i) absent evidence of the actual submission of a FOIA request, no violation can be found; (ii) representations by the Town’s counsel that the Town searched for and produced the only responsive records in its possession are sufficient for purpose of FOIA; (iii) producing responsive documents within ten days of the request was reasonable and did not violate FOIA; and (iv) FOIA does not prohibit a public body’s requirement that FOIA requests be made in writing.
Read More06-IB11 RE: Freedom of Information Act Complaint Against Capital School District
Complainant alleged that the Capital School District violated FOIA when it did not provide information regarding an employee’s attendance records and sign-out sheets. HELD: Overwhelming weight of authority in other states and federal cases leads office to believe that Delaware courts would hold that the personnel file exemption under Delaware’s FOIA does not exempt from disclosure the attendance records or time sheets of a public employee because disclosure would not constitute an invasion of personal privacy. Just as the public has a right to know the salary paid to public employees, the public also has a right to know when their public employees are and are not performing the duties for which they are paid. A Public body may redact from attendance records or time sheets of a public employee information regarding the specific nature of his or her illness or medical treatment of the name of the doctor.
Read More06-IB09: RE: Freedom of Information Act Complaint Against Town of Townsend
Complainant alleged that the Town of Townsend violated FOIA when it (i) posted notices of the Town Council’s meetings at the Town Hall instead of the meeting location; (ii) failed to give the public adequate notice of a dangerous building ordinance adopted by the Town at a workshop; (iii) charging an unreasonable fee for copying public records; and (iv) requiring a person to make a request for public records to state the reason for the request. HELD: (i) The Town complied with FOIA’s public notice requirements by posting notice of the meetings in Town Hall, its principal office. FOIA only requires a posting at the meeting location if the public body does not have a principal office; (ii) including discussion of the dangerous building ordinance on the meeting/workshop agenda was sufficient notice to satisfy FOIA’s notice provisions; (iii) charges for copying public records were reasonable under FOIA; and (iv) FOIA does not give a public body any authority to withhold public records because the request is irresponsible or frivolous, although the pending/potential litigation exemption provides a narrow exception to this general rule. The purpose of a FOIA request for records is irrelevant and a public body cannot ask the reason for the request or condition the processing of the request on a statement of purpose by the requestor.
Read More06-IB05: Re: Freedom of Information Act Complaint Against City of Newark
Complainant alleged that the Newark City Council violated FOIA’s open meeting requirements by discussing public business at a meeting without providing the public with sufficient notice on the agenda. HELD: The notice requirements of FOIA do not preclude members of the public or the public body from raising a matter of public business outside the agenda. However, when a substantial matter not specifically noticed for public discussion comes up at a public meeting, there must be a compelling reason why the issue cannot wait for discussion until a later meeting to allow for proper notice under FOIA. It is not sufficient to state that no “formal action” was taken because action by a public body includes fact gathering, deliberations and discussions, all of which influence the public body’s final decision. In this case, the minutes of the meeting indicated that the Council engaged in a substantial discussion of a matter not on the meeting Agenda. Therefore, the discussion violated FOIA’s notice requirements. However, no remediation was necessary because the agenda for the very next Council meeting indicated that the discussion would continue at the next meeting, and that agenda and notice complied with FOIA.
Read More06-IB03: Re: Freedom of Information Act Complaint Against Town of Smyrna
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 More06-IB02 Re: Freedom of Information Act Complaint Against Town of Dagsboro
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.
