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Delaware Department of Justice
Attorney General
Kathy Jennings




 Pages Categorized With: "10002(h) Public Body"

15-IB08 FOIA Opinion Letter to Mr. John Wells re: FOIA Complaint Concerning the New Castle Data Service Center

The petitioner requested a determination that the Data Service Center (“DSC”) is a public body obligated to produce public records in their custody. Held: The DSC is a “public body” within the meaning of 29 Del. C. § 10002(h). The DSC is also a custodian of the records requested by Mr. Wells. The DSC should work with the various school districts to promptly produce all public records in accordance with the terms of the statute. This determination should not be interpreted to mean that the DSC is required to create records or reports that do not exist, or produce records subject to an exemption to FOIA under 29 Del. C. §10002(l).

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15-IB05 06/17/15 FOIA Opinion Letter to Ms. Roberta J. Hemmerich re: FOIA Complaint Concerning the Cape Henlopen Senior Center Bd. of Directors

The petitioner requested a determination of whether the Cape Henlopen Senior Center (“CHSC”) is a “public body” subject to the Freedom of Information Act (“FOIA”). Held: CHSC is not a public body because it is not a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State” and it was not established by governmental act or entity as described in FOIA. The mere fact that CHSC receives a large portion of its funding from the State and Sussex County is not sufficient to subject it to FOIA because it does fall within the first statutory requirement.

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14-IB03 06/16/14 FOIA Opinion Letter to Mr. Morse, Ms. Roe and Ms. Wallace re: FOIA Complaint Concerning the Newark Board of Adjustment

The Complainant alleged the Board of Adjustment of the City of Newark (“Board”) held an “open meeting” in violation of the Freedom of information Act (“FOIA”) because it failed to provide a facility for a hearing that was large enough to accommodate all who wished to attend. The meeting had been moved to the auditorium at Newark High School. Held: the size of the venue chosen was “reasonable.” Public comment was not allowed or required in any event.

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13-IB05 10/01/13 FOIA Opinion Letter to Mr. Flaherty and Ms. Buckley re: FOIA Complaint Concerning Charter School Reform Working Group

The Complainant asked for a determination whether a twenty-four member working group appointed by the Governor to provide recommendations regarding charter schools (the “Working Group”) was a “public body” subject to the requirements of the Freedom of Information Act (“FOIA”). Held: yes.

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12-IIB08 RE: Freedom of Information Act Supplemental Opinion to 12-IIB05

This opinion supplements 12-IIB05, which held that Kent County Society of Prevention of Cruelty to Animals (KCSPCA) was a public body because it was incorporated in Delaware. This opinion clarifies that KCSPCA was empowered with statutory regulatory powers, when the General Assembly authorized it to enforce all laws enacted to protect animals, and vested it with a wide range of law enforcement powers. As such, it was a public body for purposes of the open meeting laws.

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12-IIB05 RE: Freedom of Information Act Against KCSPCA

State Senator received complaints that the Kent County Society for the Prevention of Cruelty to Animals (KCSPCA) denied public access to a Board meeting in February 2012. Held that KCSPCA was a public body because it was incorporated by filing its Certificate with the Secretary of State and it received $3,000 of grant-in-aid funding for the year.
NOTE: This opinion was supplemented by 12-IIB08.

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11-IB02 RE: Freedom of Information Act Complaint Against City of Newark

Petitioner complained that the City of Newark violated FOIA when (1) the Mayor made an appointment to the Newark Housing Authority without a public meeting and without a vote of the City Council, (2) when the Mayor “conferred” with members of Council in person or via email, (3) when Petitioner was denied copies of those emails, and (4) when a focus group met without notice to the public. Petitioner further asked whether City violated FOIA by not providing copies of emails between Mayor and Council members sent and received on private computers through non-City email accounts. Held that the City of Newark did not violate FOIA because (1) the emails sought did not exist; (2) the mayor was not required to hold a public meeting because the Mayor was a body of one; (3) stakeholder meetings were not meetings of a public body because a City employee met informally with stakeholders to provide input about electric rate structure; and (4) personal emails that were not in the City’s possession were not public records.

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11-IB03: RE: Freedom of Information Act Complaint Against Camden-Wyoming Sewer and Water Authority

Petitioner sought records from the Camden-Wyoming Sewer and Water Authority. Held that because the Camden-Wyoming Sewer and Water Authority neither receives nor disburses public funds, it is not a public body. As a result, it was not subject to FOIA.

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08-IB08: RE: Freedom of Information Act Complaint Against City of Rehoboth Beach

Complainant alleged that City violated FOIA’s open meetings requirements when it adopted ordinance reducing number of members and term limits of Rehoboth Beach Planning Commission (“RBPC”) by not properly including those matters on agenda and discussed matter privately in serial emails with a quorum of City Commissioners. Agenda referred to RBPC as a “committee” and not “commission,” and did not list issue of term limits. HELD: Definition of “committee” and “commission” are not identical and possibility of confusion exists. Issue of term limits was also not properly noticed because it was neither on agenda nor did it arise at time of meeting. City violated FOIA by not clarifying that commissions and boards, as well as committees, would be discussed at meeting and not including term limits as a matter to be discussed. Emails complained of do not constitute closed meeting of a quorum in violation of FOIA. Emails did not stimulate discussion or any action by City Commissioners in advance of public meeting. No remediation necessary because departures from FOIA did not rise to level of egregiousness to warrant the very serious sanction of invalidating votes.

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07-IB02 RE: Application Of The Freedom Of Information Act To The Courts

The Complainant, Senator Karen E. Peterson, asked whether the public record requirements of the Delaware Freedom of Information Act (“FOIA”), apply to the courts of the State of Delaware. Held: the General Assembly intended to exclude the judiciary from the application of FOIA. The language of FOIA demonstrates a legislative intent to respect the independence of the judiciary as a separate, co-equal branch of government and the judiciary’s right to control access to its records and proceedings by court rule.

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