06-IB08 – RE: Freedom of Information Act Complaint Against Woodbridge School District
Complainant alleged that the Woodbridge School District violated the open meeting requirements of FOIA when it posted an amended agenda for a public meeting less than seven days in advance of that meeting, and failed to indicate why the amended agenda was not available at the time of the original posting. The School District provided a copy of the amended agenda, which included reasons for the amendments on the last page of the agenda. Complainant argued this was not a “conspicuous posting” and that the notice and agenda still violated FOIA. HELD: Section 10004(e)(5) sets forth circumstances under which a public body may post an amended agenda less than 7 days before, but no later than 6 hours in advance, of a public meeting. The public body must provide reasons for the amendment, but this exception does not authorize a public body to amend the agenda prior to a meeting for any reason. Rather, these sorts of amendments apply to add items that come up suddenly and cannot be deferred to a later meeting. Under the circumstances of this case, the District’s reasons for posting an amended agenda less than seven days in advance of the meeting were deemed proper under FOIA and no violation was found. Additionally, the use of a double-sided agenda did not violate FOIA under the circumstances because the agenda was posted at the principal’s office, did not put a burden on members of the public to search out to discover public meetings, and the page numbering on the agenda clearly alerted members of the public to the existence of more pages.
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.
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.
05-IB29: REP: F.O.I.A. Complaint Against Town of Cheswold
Complainants allege that the Town Council violated FOIA open meeting and public records requirements by not: (1) timely posting public notice of a meeting; (2) ensuing the venue for the meeting of the Council was large enough to accommodate the public; (3) the Town Council met in executive session on for purposes not authorized by law; (4) the Town Council reached a consensus on matters of public business in executive session before voting on those matters in public without any further discussion; (5) the Town did not prepare and maintain minutes a meeting; and (6) the Town did not provide a requester with access to the minutes of prior Council meetings. Held: the Town did not violate FOIA in that it (1) posted timely public notice of a meeting held on July 7, 2005; (2) provided the public with reasonable access to attend the meeting; (3) prepared and maintained minutes of the meeting; and (4) provided reasonable access to minutes of previous meetings of the Town Council. However, the Town did violate FOIA by privately discussing the 2005-2006 budget prior to the meeting and then approving the budget without any discussion in public thereby depriving the public of the opportunity for the public to monitor and observe the budget approval process. The Town also failed to meet its burden of proof that it did not discuss two other matters of public business (code enforcement and real estate taxes), neither of which matters FOIA authorized for private discussion.
Read More05-IB28 RE: Freedom of Information Act Complaint Against New Castle County Council
Complainant alleges that the County Council violated the FOIA open meeting requirements by holding a “special meeting” for 7 of the 13 members of the Council to discuss a pending lawsuit with the County Attorney because a meeting of 7 members of the County Council constitutes a meeting of a ‘public body.’ The ‘Special Meeting Notice’ appears to exclude not only the public but also the remaining County Council members who are not the subject of a recently filed lawsuit.” Held: the Council did not violate the open meeting requirements when 9 members of the Council met in executive session to discuss pending litigation with the County Attorney. FOIA authorizes the Council to meet in private with the County Attorney to discuss litigation strategy because an open meeting would have had an adverse effect on the litigation position of the Council and the individual defendants.
Read More05-IB23: RE: F.O.I.A. Complaint Against Sussex County Council
Complainant alleged that the County Council violated the FOIA open meeting requirements by: (1) adding two items to the agenda during a meeting; and (2) voting in executive session at that same meeting to approve a land acquisition. Held: although the Council met in executive session for a purpose authorized by FOIA—to discuss site acquisitions—the Council did violate FOIA when it added two items (executive session to discuss site acquisitions, and airport perimeter fence) to the agenda for the meeting at the start of the meeting because those matters did not arise at the meeting, and came to the attention of the County Administrator before the meeting. The Council could have amended the agenda to include those two new matters at least six hours in advance of the meeting.
Read More05-IB19 Re: Freedom of Information Act Complaint Against City of Wilmington
Complainant alleges that the City violated the FOIA public records requirements by not providing: (1) “A copy of the Standard operating procedure (SOP) for the police department’s ‘F Squad”’; and (2) “Copies of all email communications generated since Nov. 1, 2004 regarding shootings, homicides, street violence or illegal drug sales sent to, written by, copied to, or forwarded to any of the several individuals. Held: the county did not violate FOIA. There are no written operating procedures, policies, or training guides specific to the F Squad; however, the County has a White Book, the index to which does not reveal any confidential law enforcement techniques or otherwise jeopardize officer safety and effective law enforcement, which may be responsive to the request. The County will make it available to assist the requestor in identifying other information requestor may request pursuant to FOIA. Further, County did not violate FOIA with respect to the email request because the Assistant City Solicitor represented, after verifying with the individuals named in your FOIA request, that they do not have any e-mails responsive to your request.
Read More05-IB21: RE: F.O.I.A. Complaint Against Woodbridge School District
Complainant alleges that the School District violated FOIA by holding a special meeting without explaining in the agenda why the School District could not give the normal 7 days notice. Held: the School District violated the open meeting requirements by not giving an explanation in the agenda for the special meeting why 7 days’ notice could not be given to the public. However, the School District has already cured that violation, by appropriately re-noticing a meeting.
Read More05-IB18: RE: F.O.I.A. Complaint Against New Castle County Council
Complainant alleges the County Council Committee violated FOIA open meeting requirements by: (1) meeting in executive session without giving the required advance notice to the public; (2) failing to follow the proper procedures for going into executive session; and (3) discussing matters in executive session which FOIA requires to be discussed in public. Held: the Committee did not violate the open meeting requirements of FOIA when it properly voted to go into executive session to discuss litigation strategy as authorized by FOIA for private discussion (a legitimate purpose). However, the Committee did violate FOIA by not giving notice seven days in advance to the public that the litigation report by the County Attorney to the Committee would be heard in executive session.
Read More05-IB15: RE: F.O.I.A. Complaint Against City of New Castle
Complainant alleged the City violated FOIA open meeting requirements by: (1) holding a meeting of the Planning Commission 1hour earlier than the time noticed to the public to discuss a proposed subdivision; and (2) amending a meeting agenda the day before the meeting to include the same subdivision for final action by the Council. Held: Council violated FOIA, because the clerical error in the time announcement deprived the public of their right to monitor and observe the discussion of a matter of public business. Council further violated FOI by amending the meeting agenda without given sufficient reason why seven days’ notice could not be given. (Despite the intervening change in Council members, the subdivision matter did not “come up suddenly” after the original posting of the agenda, nor was there any evidence in the record that consideration of the proposed subdivision by the Council was such a pressing matter that it could not be deferred until a later date.)
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