Date Posted: Thursday, July 20th, 2017
Petitioner alleged that the Delaware Agricultural Land Preservation Foundation (“DALPF”) violated FOIA by: 1) providing an inadequate description of the Agreement on its agenda, 2) failing to indicate an intent to vote on the Agreement, and 3) failing to address public comments in its agenda. HELD: There was no FOIA violation. The agenda and its attachment were sufficiently detailed to inform the public that the agreement of concern to the Petitioner would be discussed and possibly voted on, despite a typographical error in the attachment. Public comment is not required by FOIA, but the agenda did provide for public comment in which the Petitioner participated.
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Date Posted: Thursday, July 20th, 2017
Petitioner alleged that Sussex County Council’s October 4, 2016 meeting agenda did not provide adequate notice to the public that it would vote on a succession plan for leadership at the Sussex County Planning and Zoning Office. HELD: County Council violated FOIA. The agenda did not reference to an anticipated vacancy in the top position at the Planning and Zoning Office nor any plan to fill that vacancy at the meeting. As remediation, this Office recommends that County Council publicly explain their reasons for choosing the successor for that position.
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Date Posted: Wednesday, July 19th, 2017
Petitioner asked that this Office determine whether there was a legal basis for the Council of the City of Seaford to have held an emergency meeting in executive session. HELD: Having reviewed records submitted to this Office alone by the City, this Office determined that the personnel matter was an appropriate ground for an emergency meeting and executive session. Because the Council is not required by FOIA to give notice of an emergency meeting, their choice to do so shortly before the meeting cannot be held to violate FOIA. However, the Council did violate FOIA by failing to vote to go into executive session and record the minutes, including the results of a vote, of that meeting. The Council is thus asked to prepare minutes of that meeting and provide them to this Office within 10 business days of their next regularly scheduled meeting.
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Date Posted: Wednesday, July 19th, 2017
Petitioner alleged that the Wilmington Housing Authority (“WHA”) violated FOIA at its February 27, 2017 Board meeting by (1) first posting notice on February 22, 2017; (2) originally noticing an executive session to begin at 3:30 PM and the open public meeting to begin at 6:00 PM; and by (3) amending the agenda that was posted in the lobby of the building where the meeting occurred on the day of the meeting. HELD: There was no FOIA violation. WHA provided evidence that notice was posted ten days in advance of the meeting and that the notice was amended on that date to reflect that the 3:30 event would not be an executive session but a “briefing”. Further, they provided evidence that the 3:30 event described as a “briefing” was a social meet-and-greet at which public business was not discussed and thus would not implicate FOIA requirements.
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Date Posted: Monday, July 17th, 2017
Petitioner twice alleged that the Department of Correction (“DOC”) violated FOIA by asserting that they would require additional time for legal review of his request for certain records on two occasions. Petitioner further alleged that DOC violated FOIA when they completed review and declined to provide the records requested. HELD: There is no evidence of bad faith in the estimates of additional time needed for legal review, and thus there was no FOIA violation with respect to the first and second allegations. With respect to the third allegation, DOC’s claims of exemption were sufficient except for their denial of “[r]ecords of the types and amounts of all contraband seized at JTVCC since Jan. 1, 2014.” DOC is thus asked to provide a more precise response to the Petitioner regarding those records within 20 business days.
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Date Posted: Friday, July 14th, 2017
Petitioner alleged that the Department of Natural Resources and Environmental Control (“DNREC”) improperly applied the FOIA exemption for pending or potential litigation to his request for records. HELD: The Petitioner made this request while in active litigation with the Federal Emergency Management Agency (“FEMA”) over a matter to which the records are specifically related and the General Assembly did not require that the public body be a party to the litigation for the exemption to apply. Delaware courts have held that FOIA may not be used in place of court procedures to obtain documents to advance their litigation position, which was the only reason given for the Petitioner’s attempt to obtain these records, and DNREC has expressed willingness to comply with discovery in the current litigation. The exemption thus was appropriately applied and no FOIA violation was committed.
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Date Posted: Friday, July 14th, 2017
Petitioner filed two complaints regarding the Division of Public Health (“DPH”) and information the Petitioner sought from DPH regarding seized dogs. On February 9, 2017, the Petitioner alleged that DPH violated the public records provisions of FOIA by 1) not providing the records of where the dogs were located, whether they were alive, and the dates of transfer to facilities and 2) not indicating whether DPH had requested them from the Brandywine Valley SPCA (BVSPCA), which took custody of the dogs and which the Petitioner considered a public body. HELD: There was no FOIA violation. DPH did not have possession or control over the records sought because the dogs were in the custody of BVSPCA, which thus controlled the records. BVSPCA is determined to not be a public body.
On March 21, Petitioner alleged that DPH violated the public records provisions of FOIA by 1) denying the Petitioner’s request for the medical records of dogs seized from a property and 2) taking too much time to respond. HELD: There was no FOIA violation. Because there is a criminal case in which the dogs’ medical records are evidence, the records were properly denied as investigatory. The fact that the defendant may access them does not make the records public. Further, there was no evidence in the record that the delay for legal review was improper or that the new timeframe for response was estimated in bad faith.
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Date Posted: Friday, July 14th, 2017
Petitioner alleged that the Department of Justice had denied him specific records requested. HELD: There was no FOIA violation. The records referred to in the petition were not sought in the original request. DOJ did not produce records in response to the original request because the only responsive records identified were exempt from FOIA. DOJ is directed to treat the petition as a new request for records as of the date of the opinion.
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Date Posted: Thursday, July 13th, 2017
Petitioner alleged that the Department of Natural Resources and Environmental Control and Sussex Conservation District violated FOIA by not providing certain documents related to a proposed development project. HELD: These documents are part of a regulatory rather than investigatory process which would ultimately be public, and courts have not agreed with the argument that revealing such documents would chill an applicant’s ability to bring their drafts into regulatory compliance. The records are therefore not exempt, and this Office recommends that DNREC and the SCD provide all public records, subject to the redaction of nonpublic information, to the requester within 15 days of this opinion and that they review and revise the SCD FOIA policy as needed to come into compliance.
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Date Posted: Wednesday, July 12th, 2017
Petitioner alleged that the Town of South Bethany’s Town Council (the “Council”) violated FOIA by: 1) failing to provide seven days’ notice of its January 9, 2017 meeting, 2) failing to include an explanation in its January 6, 2017 meeting notice as to why seven days’ notice could not be given, 3) failing to timely notify the Petitioner that the meeting was to discuss their employment, 4) failing to provide the Petitioner an option to have an open public meeting, and 5) voting or otherwise deciding to terminate your employment prior to the January 9, 2017 meeting. HELD: The Council violated FOIA by failing to provide notice of the January 9th meeting in the required timeframe. Even in the event the special meeting was justified, the Council failed to explain in its January 6th notice why the meeting must be held without seven days’ notice and thus would still be found in violation. In response to the third and fourth allegations, this Office determines that FOIA does not entitle an employee to be notified that a public meeting will include discussion of them or to give the employee the opportunity to have that discussion heard in open session. In response to the fifth allegation, the Office determines that there was not sufficient evidence to support the allegation that the Council decided in advance of the public meeting to terminate the Petitioner’s employment.
It is unlikely that a court would direct that the Town re-notice the meeting and decide the matter anew and thus this Office does not recommend such remediation. This Office recommends that the Town follow the requirement of seven days’ notice of public meetings in the future and that they include explanations in their meeting notices when seven days’ notice cannot be given.
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