Petitioner alleged that DOC improperly denied their request for presentence investigations of sixteen inmates who had been executed by the State of Delaware. DOC responded that investigatory files are exempt from FOIA and that another statute specifically prohibited releasing the records to anyone but specified agencies without a qualifying order.
DECIDED: No FOIA violation was found as the records are exempt from the definition of public record as investigatory files and as records statutorily prohibited from public disclosure.
Petitioner made a number of allegations that Dewey Beach violated the open meetings provisions of FOIA with regard to the Mayor’s reference to a FOIA request Petitioner filed, raising the following three questions for consideration: 1) whether the individuals asked by the Mayor to “look into that FOIA” violated open meeting requirements; 2) whether the agenda provided sufficient notice of the Mayor’s announcement with respect to this request; and 3) whether the Town Council improperly discussed the FOIA matter in executive session.
DECIDED: No FOIA violation was found. This Office found no evidence that the individuals asked to look into the FOIA request met or planned to meet. In addition, this Office further found that this topic was not a “major issue to be discussed” that must be included on an agenda because Council did not consider or discuss the substance of this topic and that a preliminary request for research or review of a matter of public business does not constitute a “major issue to be discussed.” Also, the Town’s attorney confirmed that the FOIA matter was not discussed in the executive session.
This Office was asked to determine whether the City of Lewes improperly cited to two exemptions for executive session: 1) documents protected by the FOIA records provisions; and 2) potential litigation. The City responded that the agenda item was sufficient, but the issue was moot as no action was taken. The City further argued the executive session was proper because they discussed documents subject to attorney-client privilege and protected as attorney work product.
DECIDED: This Office found that the City violated FOIA because a discussion of attorney-client privileged or work production materials was an insufficient reason for the executive session. The City must meet the standards of 29 Del. C. 10004(b)(4). However, because the FOIA petition constituted pending litigation and the discussions related thereto would adversely affect the City’s litigation position, this Office found that executive session was proper for that purpose. Thus, the citation to the other improper purpose was determined to be a technical violation for which no remediation was recommended.
Petitioner alleged that they did not receive 20 free pages when the City of Wilmington responded to their FOIA request with an estimate of the cost to fulfill it.
DECIDED: No FOIA violation was found. The City properly provided an estimate to fulfill the entire request, and that estimate allowed 20 free pages.
The primary issues for determination were whether the fees listed in 29 Del. C. 10003(m) were the maximum permissible copying charges, and if not, whether the Town’s new copying fees were reasonable.
DECIDED: 29 Del. C. § 10003(m) only requires a municipality to use the fees listed therein unless a municipality has adopted different fees in its municipal code. This Office no longer has the authority under the FOIA statute to conduct an independent review of the reasonableness of those fees that a municipality adopted in its code.
This Office was asked to determine whether DNREC properly applied the pending or potential litigation exemption in response to a request for records.
DECIDED: As the only litigation cited was between two private parties and the requestor sought them only for litigation against a private party, DNREC violated FOIA by citing the exemption for pending or potential litigation. This Office recommended that DNREC produce the remaining responsive records, subject to any other exemptions permitted by FOIA.
This Office was asked to determine whether OGov properly applied executive privilege when redacting records.
DECIDED: No FOIA violation was found. Consistent with existing precedent, this Office accepted the written submission indicating that OGov applied the privilege with a clear understanding when it performed the review and the affidavit of legal counsel that the redactions were reviewed and appropriate.
Several violations were alleged with respect to two executive sessions and a vote, including: 1) whether the Town of South Bethany improperly cited potential litigation as justification for two executive sessions; 2) whether the review of non-public records in executive session was appropriate, and 3) whether a vote after one executive session had sufficiently stated the subject matter.
DECIDED: The discussion of two matters under the “pending and potential litigation” exemption at the November 8, 2018 executive session violated FOIA, as there was insufficient objective indicia of a tangible threat of litigation in either matter. With regard to the first matter, this Office recommended an open session be scheduled for discussion. This Office determined that the second matter was properly discussed in executive session, though not under the justification cited, because it involved personnel actions. No remediation for that portion of the executive session was recommended. An executive session held on January 29, 2019 was justified by the evidence of potential for litigation. The discussion of certain non-public records was found appropriate under 29 Del. C . 10004(b)(6).
The petitioner requested records regarding an individual and the individual’s company. DNREC denied the request pursuant to the pending or potential litigation exemption, and the petitioner alleged that DNREC improperly withheld records under this exemption.
DECIDED: No FOIA violation was found, as DNREC asserted the requested records were related to an expert witness in pending litigation between the petitioner’s clients and DNREC.
The primary issues were whether the Rehoboth Beach City Council properly discussed an attorney-client memorandum prepared by their attorney in executive session; whether the Council properly discussed the sale of wastewater treatment plant in executive session; and whether the City’s Personnel Committee violated FOIA by failing to follow open meeting requirements for its January 3, 2019 meeting.
DECIDED: Discussion of an attorney-client privileged memorandum is not a proper purpose for executive session under FOIA. Because this portion of the executive session discussions did not otherwise meet the requirements of 29 Del. C. 10004(b)(4), the executive session violated FOIA. The discussion of the sale of the treatment plant property was appropriate for executive session under 29 Del. C. 10004(b)(2).
FURTHER DECIDED: The City’s Personnel Committee is a public body subject to FOIA and therefore violated FOIA by failing to comply with the open meeting requirements for its January 3, 2019 meeting. As remediation, this Office recommends that any existing meeting minutes are made available in compliance with FOIA. If the meeting was recorded or otherwise preserved, this Office recommends that the City recreate meeting minutes from those records. If neither minutes nor records preserving the substance of the meeting exist, this Office need not recommend any further remediation, as the City has stated in its Response that it intends to operate the Personnel Committee in accordance with FOIA’s open meeting requirements in the future.
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