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Delaware Department of Justice
Attorney General
Kathy Jennings




 Pages Categorized With: "10002(l) (9) Exemptions – Pending or Potential Litigation"

04-IB04 Re: Freedom of Information Act Complaint Against Providence Creek Academy

Del. Op. Atty. Gen. 04-IB04 (Del.A.G.), 2004 WL 335476 Office of the Attorney General State of Delaware Opinion No. 04-IB04 February 5, 2004 Re: Freedom of Information Act Complaint Against Providence Creek Academy *1 David H. Williams, Esquire Morris, James, Hitchens & Williams, LLC 222 Delaware Avenue P.O. Box 2306 Wilmington, DE 19899-2306 Dear Mr. […]

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03-IB26 RE: Freedom of Information Act Complaint Against New Castle County

The Complainant asks for reconsideration of Attorney General Opinion 03-IB10 dated May 6, 2003. Held: FOIA cannot be used by a party to litigation to gain a discovery advantage.

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03-IB21 Re: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by not providing the names, addresses, and policy numbers of insurance carriers which underwrite public official coverage for the County. The County contended the requested information is exempt from disclosure under FOIA for two reasons: (1) “the [insurance] coverage information in the policy contains confidential information or financial details”; and (2) the information “falls within the pending or potential litigation exception.” Held: County did not violate the public records requirements of FOIA by refusing to provide documents that contain the names and addresses of insurers and the insurance policy numbers because the records containing such information fall within the potential litigation exception under FOIA.

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03-IB10 RE: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying you access to documents regarding the Red Lion Village subdivision. The County claims that the documents you requested are not subject to FOIA for two reasons: (1) they pertain to “pending litigation” before the County Planning Board; and (2) they pertain to “potential litigation” because any decision by the Planning Board could be appealed to court. Held: the documents requested from the County are not “public records” for purposes of FOIA because they are within the exemption for pending litigation.

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02-IB32 Re: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying his request for “copies of letters sent by the law firm of Kirkland & Ellis to the News Journal regarding Sherry Freeberry’s Statement of Financial Interest.” The County claims these records are exempt from disclosure under FOIA because “[t]hese letters related directly to potential litigation and were prepared by the County Attorney’s designee.” Held: the County has failed to meet its burden of proof to justify withholding these records from the public. The purpose of FOIA’s potential litigation exemption is to prevent a party from using FOIA in lieu of the discovery rules to obtain information outside the judicial process. For the exemption to apply, the public body that is the custodian of the records must show objective criteria that litigation is likely, and a sufficient nexus between the records and the subject matter of any potential litigation. See Att’y Gen. Op. 02-IB30 (Dec. 2, 2002).

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02-IB30 RE: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying your request for “a copy of all documents which were prepared for, relied upon, or handed out to participants and/or any County employees at the special meeting held by the County Executive on Thursday, July 11, 2002 at 4 p.m. in the Executive Conference Room at the County Government Center.” By letter dated August 6, 2002, the County denied your request. Held: the County did not violate FOIA by withholding the personal notes prepared by Mr. Baker for the July 11, 2002 meeting because they are not “public records” as defined by FOIA. We determine that the County violated FOIA by not providing you with access to the remaining documents you requested because the County has failed to meet its burden of proof that those documents are within the potential litigation or other exemption under FOIA.

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02-IB24 Re: Freedom of Information Act Complaint Against New Castle County

The Complainant alleged that New Castle County (“the County”) violated FOIA by not providing you with copies of any checks payable to Sharon Hughes, former legislative aide to New Castle Councilman J. Christopher Roberts, or her attorney, Richard J. Wier, Jr., Esquire, relating to the legal settlement of a personnel matter between the County and Ms. Hughes. Held: any nondisclosure provision in a settlement agreement between Ms. Hughes and the County cannot override the public records requirements of FOIA and that the County violated FOIA by not providing you with access to documents relating to the settlement of a legal claim between Ms. Hughes and the County.

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02-IB12: Re: Freedom of Information Act Complaint Against Fenwick Island Town Council

Complainant alleged that the Town of Fenwick Island (“the Town”) violated FOIA by: (1) failing to give the public notice of its intent to go into executive session at a meeting on February 8, 2002; (2) improperly entering into executive session at that meeting to discuss pay raises for police officers; (3) failing to give adequate notice to the public that it would go into executive session at a meeting on February 22, 2002; (4) improperly entering into executive session at that meeting to discuss police department problems; (5) failing to give adequate notice to the public of its intent to go into executive session at a meeting on March 16, 2002; (6) impermissibly entering into executive session at that meeting to discuss personnel and legal problems involving the police department; and (7) not providing you with copies of the minutes of executive sessions. Held: the Council violated the open meeting requirements of FOIA when it went into executive session to discuss matters of public business at its meetings on February 8, February 22, and March 16, 2002. The Council violated the agenda requirements of FOIA by amending the agenda just prior to the meeting on March 16, 2002, and without stating the reason for the delay. Finally, the Council violated the public records requirements of FOIA by denying access to the minutes of executive sessions which were not authorized by law.

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97-IB05 RE: Freedom of Information Act Complaint Against Town of Laurel

Complainant alleged that the Town of Laurel denied his request to inspect and copy public records HELD: The Town did not violate the public records provisions of FOIA because the Town made available to complainant for inspection and copying most of the public records requested, and the documents it did not disclose are specifically exempted under FOIA because they related to pending litigation and the attorney client privilege (letters to counsel relating to a bankruptcy proceeding, letters to attorneys related to outstanding amounts due for water, sewer, trash, and real estate taxes, and a letter from counsel to a client relating to bankruptcy proceedings and sale of properties for tax delinquencies), and the common law right of privacy (parking tickets).

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