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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




20-IB01 1/3/2020 FOIA Opinion Letter to Rep. John Kowalko re: FOIA Complaint Concerning the Delaware Prosperity Partnership

Date Posted: Friday, January 3rd, 2020

Petitioner alleged that the Delaware Prosperity Partnership is a public body and is obligated to respond to his request for certain records.

DECIDED: No FOIA violation was found. DPP was determined not to be a public body subject to FOIA.

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19-IB68 12/30/2019 FOIA Opinion Letter to Mr. George X re: FOIA Complaint Concerning New Castle County

Date Posted: Monday, December 30th, 2019

Petitioner alleged that New Castle County redacted “flagged” information from 911 records pertaining to his address without citing a statutory exemption from FOIA. The County responded that the “flagged” information maintained in the 911 system contains specific warnings and response strategies that aid law enforcement in responding to a particular address and that the disclosure of flagged information may endanger the safety of neighboring citizens and the responding officers, and is thus exempt pursuant to 29 Del. C. § 10002(l)(17).

DECIDED: No FOIA violation was found. FOIA requires a public body to provide a reason for denying a request but does not require a specific citation to the statute. Based on the County’s representations, this Office found that the County properly asserted the 29 Del. C. § 10002(l)(17) exemption in these circumstances.

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19-IB67 12/18/2019 FOIA Opinion Letter to Mr. Richard Abbott re: FOIA Complaint Concerning the Delaware Department of Transportation

Date Posted: Wednesday, December 18th, 2019

Petitioner alleged DelDOT improperly denied his FOIA request on behalf of his client for draft appraisals and communications regarding appraisals by citing exemptions for pending or potential litigation, trade secrets or commercial or financial information, and attorney-client privilege.

DECIDED: This Office determined that DelDOT adequately demonstrated that potential litigation with DelDOT is likely or reasonably foreseeable and the draft appraisals and the communications related to the appraisals have a clear nexus to this potential litigation. Thus, these records were exempt under 29 Del. C. § 10002(l)(9) and properly withheld under FOIA.

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19-IB66 11/26/2019 FOIA Opinion Letter to Mr. Richard Stifter re: FOIA Complaint Concerning The City of Wilmington

Date Posted: Tuesday, November 26th, 2019

Petitioner alleged the City of Wilmington improperly denied his request for a certificate of insurance.

DECIDED: No violation was found. In accordance with McBurney v. Young and prior Attorney General Opinions, a Delaware public body may deny a FOIA request solely because the requesting party is not a citizen of Delaware, and the only evidence in the record indicated that the Petitioner was not a citizen.

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19-IB65 11/25/2019 FOIA Opinion Letter to Ms. Stephanie Lynch re: FOIA Complaint Concerning Sussex County

Date Posted: Monday, November 25th, 2019

Petitioner alleged Sussex County improperly denied her FOIA requests. The County provided a cost estimate for certain records, and the Petitioner also alleged that the County improperly denied her request to reduce the cost estimate by the value of the time employees performing the search had spent on personal internet usage in a time period prior to the search.

DECIDED: No FOIA violation was found. The records requested related to pending or potential litigation, and no error was found in the County’s denial of the Petitioner’s request to subtract employees’ personal internet time from the costs estimated to fulfill the Petitioner’s request.

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19-IB64 11/12/2019 FOIA Opinion Letter to Ms. Kathryn Gifford re: FOIA Complaints Concerning The Christina School District

Date Posted: Tuesday, November 12th, 2019

Petitioner alleged that the Christina School District Board’s October 8, 2019 vote by secret ballot to fill a vacancy violated FOIA’s open meeting requirements; that the Board must have improperly made the decision to conduct the vote by that method in executive session; and that the Board must have improperly decided on candidate interview questions outside of a public meeting.

DECIDED: In Attorney General Opinion No. 19-IB63, this Office found that the District violated FOIA with respect to the secret ballot process and the executive session at the October 8, 2019 meeting. With regard to the allegations regarding the interview format and questions, this Office accepted the representations of the Board’s attorney and found no additional FOIA violations.

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19-IB63 11/8/2019 FOIA Opinion Letter to Mr. John Young re: FOIA Complaints Concerning The Christina School District

Date Posted: Friday, November 8th, 2019

Petitioner alleged that the Christina School District Board’s October 8, 2019 vote by secret ballot to fill a vacancy violated FOIA’s open meeting requirements and that the Board must have improperly made the decision to conduct the vote by that method in executive session.

DECIDED: This Office determined that there were two violations of FOIA. A secret ballot violates FOIA’s open meeting requirements. This Office also found that the Board provided no factual allegations upon which to determine whether a discussion of voting procedures actually occurred during the executive session or if the executive session was held for a proper purpose. Thus, the Board failed to meet its burden of justifying the October 8, 2019 executive session.

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19-IB62 11/6/2019 FOIA Opinion Letter to Mr. Xerxes Wilson re: FOIA Complaint Concerning The City of Wilmington

Date Posted: Wednesday, November 6th, 2019

Petitioner alleged that the City of Wilmington improperly denied their request for records of activations of the City’s gunshot detection system, ShotSpotter, by citing the exemptions for investigatory and intelligence files when the City had previously provided them and on occasion publicizes the information. The City responded that they began using such records for investigative purposes in April 2017.

DECIDED: No FOIA violation was found for asserting the investigatory file exemption for the requested records after April 2017, but this Office recommended the City review its records and provide a supplemental response for records generated before that time and for records used to publicize sets of the data requested.

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19-IB61 11/5/2019 FOIA Opinion Letter to Mr. Xerxes Wilson re: FOIA Complaint Concerning The Delaware Department of Safety and Homeland Security

Date Posted: Tuesday, November 5th, 2019

Petitioner alleged that DSHS improperly denied their request for documents regarding expenditures of public funds on Newport police officers by citing the exemptions for investigatory files, criminal history records, and records pertaining to pending or potential litigation.

DECIDED: Based on the record presented to this Office, DSHS did not meet its burden to justify the denial of those records. This Office recommended that DSHS respond to the request in compliance with FOIA within 15 business days of this Opinion.

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19-IB60 10/28/2019 FOIA Opinion Letter to Ms. Holly Kirkland re: FOIA Complaint Concerning the Delaware Department of Natural Resources and Environmental Control

Date Posted: Monday, October 28th, 2019

Petitioner alleged that DNREC’s FOIA Coordinator violated FOIA by failing to provide adequate assistance by not responding to questions emailed on September 10, 2019 email and that the cost estimate was flawed because DNREC could use lower-paid employees to perform the search of electronic records; the nature of the work required was not included; and DNREC did not provide proof that it excluded fees necessary to perform a legal review of the responsive records.

DECIDED:
No FOIA violation was found. DNREC’s failure to respond to the petitioner’s inquiries in these circumstances do not rise to the level of a FOIA violation. Based upon DNREC’s sworn affidavit and the representations made in response, this Office did not find a FOIA violation in DNREC’s preparation of this cost estimate.

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