19-IB58 10/24/2019 FOIA Opinion Letter to Mr. Dion Wilson re: FOIA Complaint Concerning the City of Wilmington
Petitioner alleged that the Wilmington City Council violated FOIA by prohibiting him from providing public comment at a public meeting. The City argued that the public comment period, which is a separate session preceding the Council meeting, is not subject to FOIA’s open meetings provisions and further argued that Petitioner’s conduct justified excluding him from participation.
DECIDED: The public comment period is subject to FOIA’s open meeting requirements, and it was determined that the City violated FOIA by barring the petitioner from speaking in these circumstances.
Read More19-IB57 10/24/2019 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council
Petitioner alleged that Sussex County Council did not notice a meeting a full seven days in advance because the notice was posted after business hours one week before the meeting and further alleged that the Council did not provide a reason for amendments to the agenda.
DECIDED: No FOIA violation was found.
Read More19-IB56 10/1/2019 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control
Petitioner alleged that DNREC improperly withheld documents received from the US Air Force, claiming such records fell under the exemptions for investigatory files and the common law right of privacy.
DECIDED: This Office determined that DNREC did not meet its factual burden demonstrating that the investigatory file exemption is applicable to the records requested and that DNREC violated FOIA by declining to produce the records on this basis. This Office recommended DNREC, within fifteen business days of the date of this Opinion, produce a supplemental response to Petitioner’s FOIA request.
19-IB55 9/30/2019 FOIA Opinion Letter to Mr. Tony Rapposelli re: FOIA Complaint Concerning The Delaware Interscholastic Athletic Association
Petitioner alleged that a DIAA Sportsmanship Committee agenda item, “Sportsmanship Complaint-Parent” was not sufficient to notify the public that a complaint regarding the Concord High School lacrosse team would be discussed.
DECIDED: The Committee violated FOIA by not providing sufficient notice to the public of the subject to be discussed. However, no further remediation was recommended.
Read More19-IB54 9/26/2019 FOIA Opinion Letter to Mr. Keith Steck re: FOIA Complaint Concerning Sussex County
Petitioner alleged that Sussex County’s Buffers and Wetlands Working Group was a public body and was required to meet the opening meeting requirements. He alleged the Working Group violated the open meeting requirements by posting the notices of its meetings at an inappropriate location, failing to include the votes to approve draft minutes in its agendas, and improperly excluding a meaningful recitation of the meetings’ discussions and the affiliations or roles of the attendees in the minutes.
DECIDED: Although this Office found that the Working Group was a public body, no FOIA violation was found.
Read More19-IB53 9/17/2019 FOIA Opinion Letter to Mr. Craig O’Donnell re: FOIA Complaint Concerning The Department of Safety and Homeland Security
Petitioner alleged that DSP violated FOIA in multiple ways: 1) failed to respond to his request in a timely manner after notifying Petitioner an extension was needed; 2) did not contact DSP for clarification; 3) did not provide a good faith estimate; 4) did not claim providing certain records would constitute creation of records, as DSHS had in the past; 5) failed to provide the records in the format requested; 6) failed to advise Petitioner the records would be in a different format; 7) did not explain by separate letter how the records provided related to your request; 8) did not provide responsive records; and 9) did not respond to your question about the request 24 hours.
DECIDED: No FOIA violation was found. As DSP provided a response, the allegations regarding timeliness were moot, though DSHS was recommended to provide more timely correspondence in the future. FOIA does not prohibit the disclosure of records but merely gives the public body the grounds to withhold records exempt from the definition of “public records.” DSP’s counsel represented that DSP produced the files responsive to the request in the only format available to DSP and “containing existing fields,” and in accordance with past practice, our Office accepted this representation regarding the existence of records. FOIA does not require a public body to convert its existing files into other formats. FOIA does not require a public body to explain why the provided records are responsive, send a separate cover letter, or respond to emails received in its normal course of business within certain timeframes.
Read More19-IB52 9/17/2019 FOIA Opinion Letter to Mr. Kevin Madden re: FOIA Complaint Concerning the Town of Dewey Beach
Petitioner alleged Dewey Beach violated FOIA in two ways: 1) failing to post the matter of Petitioner’s position on the agenda; and 2) failing to reserve this personnel discussion for executive session.
DECIDED: No FOIA violation was found. The record demonstrated that no substantive discussion was held and FOIA does not prohibit discussing personnel topics in open session.
Read More19-IB51 9/16/2019 FOIA Opinion Letter to Mr. Kevin Madden re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control
Petitioner alleged that DNREC violated FOIA by requesting payment of its estimated fee in advance of a search and not providing sufficient assistance to help Petitioner reduce the costs or advising Petitioner of publicly available materials.
DECIDED: No FOIA violation was found. Public bodies are permitted by the FOIA statute to require payment in advance. The factual record does not support the claims that DNREC provided inadequate assistance.
Read More19-IB50 9/16/2019 FOIA Opinion Letter to Mr. Walter Gilefski re: FOIA Complaint Concerning The Sussex County Vocational Technical School District
Petitioner alleged that the Sussex Technical School District failed to include a consultant’s contract on the publicly posted agenda for a meeting at which it discussed and voted to approve the contract.
DECIDED: The District violated FOIA by not adding the discussion item and vote to the agenda until the meeting itself, as the topic did not naturally evolve out of discussions related to a publicly-noticed item on the agenda. When an agenda has not been properly amended at least six hours in advance of the meeting, FOIA only permits a new item be discussed if it arises out of a natural evolution of a publicly-noticed item on the agenda. A public body may not simply vote to adopt a new item on the agenda at the beginning of its meeting with no prior public notice.
Read More19-IB49 9/9/2019 FOIA Opinion Letter to Messrs. Raynor Johnson and John Seitz re: FOIA Complaint Concerning The Department of State
Petitioners alleged that the Department of State (“DOS”) violated FOIA by not providing the requested incorporation records in response to a request.
DECIDED: No FOIA violation was found. This Office accepted DOS’s sworn statement that no information exists in a document format; instead, the only available documents are on a database application screen. A Delaware statute does not require the Division of Corporations to produce any bulk data or digital copies of records, only those records produced by photocopying or electronic image copying. In addition, the records sought are exempt from FOIA due to the Petitioners’ pending litigation regarding their incorporation.
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