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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




20-IB11 3/13/2020 FOIA Opinion Letter to Mr. Gary Myers re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Date Posted: Friday, March 13th, 2020

Petitioner alleged that DNREC improperly asserted the exemptions for pending or potential litigation and for attorney-client privilege and attorney work product doctrine in denying his request for records pertaining to an ongoing dispute over the Renewable Energy Portfolio Standards Act (“REPSA”) regulations.

DECIDED: No FOIA violation was found, as the pending litigation exemption applies.

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20-IB10 3/12/2020 FOIA Opinion Letter to Mr. John Young re: FOIA Complaint Concerning Christina School District

Date Posted: Thursday, March 12th, 2020

Petitioner alleged that the Board did not provide adequate notice to the public that a censure resolution of a school board member would be discussed and voted on at the February 11, 2020 meeting. Specifically, he alleged that the Board added the item without adequate public notice, violated emergency meeting requirements, did not place the agenda item in the appropriate section of the agenda, and did not include the language of the resolution.

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20-IB09 2/27/2020 FOIA Opinion Letter to Mr. James Owen re: FOIA Complaint Concerning New Castle County

Date Posted: Thursday, February 27th, 2020

The Petitioner alleged that New Castle County violated FOIA by failing to complete a review of its records as it committed to do and by improperly denying access to records under the pending or potential litigation exemption.

DECIDED: The County violated FOIA by failing to timely give a reason for its delay and a good faith estimate of time needed to respond to the request. However, as it was determined that the request was ultimately properly denied under the potential litigation exemption, no remediation was recommended.

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20-IB08 2/25/2020 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware River and Bay Authority

Date Posted: Tuesday, February 25th, 2020

Petitioner alleged that the Delaware River and Bay Authority violated FOIA’s open meeting requirements by holding an improper executive session.

DECIDED: Delaware River and Bay Authority is not subject to Delaware’s FOIA law, and therefore, the petition is dismissed.

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20-IB07 2/24/2020 FOIA Opinion Letter to Mr. Kohl Harrington re: FOIA Complaint Concerning the Delaware Department of Agriculture

Date Posted: Monday, February 24th, 2020

Petitioner alleged they were denied records on the basis that they were not a Delaware citizen.

DECIDED: No FOIA violation was found.

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20-IB06 2/5/2020 FOIA Opinion Letter to Mr. Dan Cannon re: FOIA Complaint Concerning the City of Seaford

Date Posted: Wednesday, February 5th, 2020

Petitioner alleged that the Board of Adjustment of the City of Seaford provided insufficient public notice of its consideration of a variance at its December 4, 2019 meeting.

DECIDED: This Office determined that the City did not violate FOIA as alleged by the Petitioner, as the agenda provided adequate notice to the members of the public with an intense interest in the variance.

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20-IB05 1/23/2020 FOIA Opinion Letter to Richard Abbott, Esq. re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Date Posted: Thursday, January 23rd, 2020

Petitioner alleged that DNREC improperly denied his request for records regarding his client’s wetland map amendment application.

DECIDED: DNREC did not violate FOIA as alleged. DNREC satisfied the statutory requirement in this instance by citing to the pending or potential litigation exemption as its reason for denying the request. In addition, the Office found that the circumstances met the two-prong test for the potential litigation exemption, and DNREC appropriately denied the request on this basis.

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20-IB04 1/14/2020 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning Odyssey Charter School

Date Posted: Tuesday, January 14th, 2020

Petitioner alleged the Nominating Committee of the Odyssey Charter School’s Board of Directors improperly noticed its intent to hold an executive session.

DECIDED: Because any public body can hold an executive session in the manner authorized by FOIA, the Board’s Nominating Committee, as a public body, did not violate FOIA by noticing its intent to hold an executive session.

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20-IB03 1/14/2020 FOIA Opinion Letter to Ms. Laura Allen re: FOIA Complaint Concerning the Division of Public Health

Date Posted: Tuesday, January 14th, 2020

Petitioner alleged that the Division of Public Health of the Delaware Department of Health and Social Services (“DPH”) improperly withheld documents regarding certain animal control complaints and evidence.

DECIDED: DPH did not violate FOIA, as the requested records were investigatory file records exempt pursuant to 29 Del. C. § 10002(l)(3).

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20-IB02 1/3/2020 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning Odyssey Charter School

Date Posted: Friday, January 3rd, 2020

Petitioner alleged Odyssey Charter School’s Board of Directors held a Board meeting on December 3, 2019 in a locked building that did not allow adequate public access. The Petitioner also asserted that this location also was not the Board’s typical meeting location. Petitioner further alleged the Board and its Nominating Committee improperly held executive sessions.

DECIDED: The Board did not violate FOIA in its provision of access to the December 3, 2019 meeting because it provided proper notice of the location and made arrangements for main office staff to allow access to the building. However, this Office determined that the Board’s failure to provide notice of its December 3, 2019 executive session was a violation of FOIA. The Board committed to discuss the qualifications of the candidates and take a vote selecting the Board members in open session at a future public meeting. No additional steps were recommended.

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