Date Posted: Monday, June 6th, 2016
Petitioner alleged that the Department of Natural Resources and Environmental Control improperly denied requested documents. Held: There is no common law exemption for “settlement negotiations” to justify withholding documents on such a basis. Documents withheld due to potential litigation or attorney-client privilege were appropriately considered exempt. Those documents withheld as “working drafts” would require further analysis. Because most documents withheld as “working drafts” were also withheld as related to potential litigation or attorney-client privilege, we request that only those not so exempted receive additional review. If, consistent with this opinion’s guidance, such records are determined to not be exempt, those records should be provided to Mr. Carter’s organization.
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Date Posted: Monday, May 9th, 2016
Petitioner alleged that the Town of Little Creek violated FOIA by not publishing Town Council meeting minutes on their website and by requiring her to visit the private residence of a Town official to review public documents. Held: The Town is not required by FOIA to post meeting minutes online because that provision applies only to the executive branch of state government. The Town violated FOIA’s requirement of “reasonable access” by requiring a citizen to visit a private residence for public documents. No remediation is required because the Town has since provided the documents by mail.
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Date Posted: Thursday, April 7th, 2016
Petitioner alleged that the City of New Castle violated FOIA by assessing fees for legal review of the police procedures manual. Held: The charge did not violate FOIA because a review to determine whether disclosure of such information would present a safety risk to the police department or general public is considered to be an administrative rather than legal review. However, the City must ensure that the charge is based on the hourly rate of the lowest-paid individual capable of performing the work, provide an accounting to the Petitioner of the time spent on review, and refund any unspent balance of the prepaid charge.
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Date Posted: Friday, March 18th, 2016
Petitioner alleges that the City of Rehoboth Beach refused to explain the sources and methods utilized in arriving at its assessment figures, but was provided the requested records and does not allege otherwise. Held: The City is not required by FOIA to create records that do not exist. The methods by which properties were valued are outside the scope of FOIA.
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Date Posted: Friday, March 18th, 2016
Petitioner requested from the City of Rehoboth Beach “comparable sales for which fair market value was established” for certain properties for purposes of assessment. Held: The City violated FOIA when it failed to treat Petitioner’s request as a FOIA request and failed to respond within the timeframe required by FOIA. No remediation is required as Petitioner was later provided the opportunity to inspect responsive documents. The methods by which properties were valued are outside the scope of FOIA.
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Date Posted: Monday, March 14th, 2016
Petitioner appealed the withholding of certain requested emails that were determined by the Office of the Governor to be exempt from FOIA under Exemption 6 (privileged materials) and Exemption 16 (sent to or by a legislator or legislative staff). Held: Documents which are covered by common law privilege such as attorney-client privilege, executive privilege, and draft document privilege are exempt from FOIA. Documents may not be withheld pursuant to Exemption 16 solely on the basis that the sender or recipient is a member of the General Assembly or its staff and must therefore be examined to determine if the content or context indicates that they constitute communications with a constituent of the legislator or reflect the substance of such communications.
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Date Posted: Friday, March 11th, 2016
Petitioner alleged that at the State Board of Education meeting held on January 21, 2016, the following constituted violations of FOIA: side conversations between a staff member and counsel and between the Board president and counsel, denial of a request by a member of the public to make public comment, and permitting a Board staff member to speak during Board discussion. Held: No FOIA violation was found regarding the side conversations because neither involved a quorum of board members. FOIA does not require public meetings to include public comment. FOIA does not prohibit Board staff from speaking during meetings.
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Date Posted: Thursday, March 10th, 2016
The Department of Finance denied Petitioner’s request for the applications of several companies for exemption from corporate income tax. Held: There was no FOIA violation. Such applications are considered a “report or return” required by 30 Del. C. § 368, which prohibits the disclosure of the information contained in such reports or returns. FOIA exempts from disclosure those records that are deemed confidential by other statute(s).
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Date Posted: Friday, March 4th, 2016
Petitioners appealed the redactions of a document that was produced pursuant to Attorney General Opinion 15-IB14 as improper under FOIA. Held: The State Police are directed to review the redactions to determine whether an error was made. The State Police should thereafter promptly provide to Petitioner either (i) a new copy of the documents without the redactions, if it is determined that they were erroneous, or (ii) the basis for the redactions, if it is determined that the redactions were intentional.
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Date Posted: Thursday, January 14th, 2016
Petitioner requested from the Town “copies of Bethany Beach Police Department’s policies and procedures related to internal affairs investigations, discipline and code of standards or conduct and the completed internal affairs investigations statistical summaries for the years 2011 through 2014.” The Town produced the policies and procedures, but denied the request for the internal affairs investigations statistical summaries, claiming to provide such summaries would be out of compliance with the Law Enforcement Officers’ Bill of Rights (LEOBOR) due to the police force’s small size. Held: There is no FOIA violation. Town policy that would otherwise make such records available to the public is subordinate to the state LEOBOR statute, which protects records of internal affairs investigations from disclosure.
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