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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




19-IB53 9/17/2019 FOIA Opinion Letter to Mr. Craig O’Donnell re: FOIA Complaint Concerning The Department of Safety and Homeland Security

Date Posted: Tuesday, September 17th, 2019

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.

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19-IB52 9/17/2019 FOIA Opinion Letter to Mr. Kevin Madden re: FOIA Complaint Concerning the Town of Dewey Beach

Date Posted: Tuesday, September 17th, 2019

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.

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19-IB51 9/16/2019 FOIA Opinion Letter to Mr. Kevin Madden re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Date Posted: Monday, September 16th, 2019

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.

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19-IB50 9/16/2019 FOIA Opinion Letter to Mr. Walter Gilefski re: FOIA Complaint Concerning The Sussex County Vocational Technical School District

Date Posted: Monday, September 16th, 2019

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.

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19-IB49 9/9/2019 FOIA Opinion Letter to Messrs. Raynor Johnson and John Seitz re: FOIA Complaint Concerning The Department of State

Date Posted: Monday, September 9th, 2019

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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19-IB48 9/9/2019 FOIA Opinion Letter to Ms. Kristin Gibbons re: FOIA Complaint Concerning Sussex Technical School District

Date Posted: Monday, September 9th, 2019

Petitioner alleged that the Board of Education of the Sussex Vocational Technical School District violated FOIA as follows: 1) improperly discussing and voting at its May 13, 2019 meeting to end the hospitality program through a phase-out; 2) holding executive sessions at the outset of every regular meeting without proper public notice; and 3) improperly deciding to terminate the hospitality program at the August 12, 2019 meeting effective
immediately without any public notice.

DECIDED: The Board violated FOIA at its May 13, 2019 meeting by voting to add the discussion and vote regarding the phase-out of the hospitality program at the outset of the meeting. When an agenda has not been 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.

No FOIA violation was found with respect to the August 12, 2019 meeting. No specific determination was made regarding the use of executive sessions, but this Office cautioned the Board to review its use of executive sessions.

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19-IB47 9/4/2019 FOIA Opinion Letter to Mr. Dan Kramer re: FOIA Complaint Concerning Sussex County

Date Posted: Wednesday, September 4th, 2019

This Office was asked to determine whether Sussex County Council violated FOIA by discussing potential purchases of development rights in executive session.

DECIDED: No FOIA violation was found. The purchase of an essential property right incident to the land is effectively an acquisition of land, which FOIA permits for discussion in executive session.

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19-IB46 8/27/2019 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware Auditor of Accounts

Date Posted: Tuesday, August 27th, 2019

Petitioner alleged that the Auditor of Accounts must possess, but did not disclose, certain requested records in response to his request for communications regarding Odyssey Charter School.

DECIDED: No FOIA violation was found. When a public body provides an affidavit, under penalty of perjury, supporting its determination whether public records exist, this Office accepts the public body’s sworn representations in reviewing this determination.

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19-IB45 8/26/2019 FOIA Opinion Letter to Mr. Shawn Tucker re: FOIA Complaint Concerning The City of Lewes

Date Posted: Monday, August 26th, 2019

The City of Lewes responded to a FOIA request and provided records but refused to certify to the requestor that all records responsive to the request had been provided and refused to produce a duplicate copy of an email. This Office was asked to determine whether the City’s response was appropriate under FOIA.

DECIDED: No FOIA violation was found. The FOIA statute does not require a public body granting access to records to certify that all responsive public documents have been provided to the requesting party, nor does it require that a public body produce multiple copies of identical public records.

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19-IB44 8/12/2019 FOIA Opinion Letter to Mr. Craig O’Donnell re: FOIA Complaint Concerning The Delaware State Police

Date Posted: Monday, August 12th, 2019

This Office was asked to determine whether the Delaware State Police appropriately denied a request for raw data regarding traffic stops.

DECIDED: No FOIA violation was found. The requested information is exempt as investigatory files under 29 Del. C. § 10002(l)(3) and 12 Del. C. §313. Transferring the information from these reports into a digital format does not eliminate the exemptions for such information.

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