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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




02-IB09: FOIA/Middletown

Date Posted: Thursday, April 4th, 2002

Complainant alleged that the Town of Middletown (“the Town”) violated FOIA by denying citizens reasonable access to meetings to discuss a proposed Wal-Mart site plan. Held: if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.

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02-IB07: FOIA Complaint Against Sussex County Council

Date Posted: Friday, March 22nd, 2002

The Complainant alleged that Sussex County (“the County”) violated FOIA by failing to prepare minutes of a meeting on December 11, 2001. Held: the Council violated the open meeting requirements of FOIA by not preparing minutes of the luncheon between the Council and representatives of the Land Trust on December 11, 2001.

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02-IB03: FOIA Complaint Against Cape Henlopen School District

Date Posted: Friday, February 1st, 2002

The Complainant alleged that the Cape Henlopen School District (“the District”) violated FOIA by not providing you with information you requested. Specifically, you asked for: (1) a schedule of all school bus pickups and drop offs in your neighborhood (145 Beachfield Drive); (2) forms to present a claim for damage to your property allegedly caused by a school bus; and (3) documents relating to inquiries the School District made in the neighborhood and to local zoning boards. Held: FOIA cannot be used to compel production of documents in the possession of a private contractor. See Harold v. Orange County, Fla. App., 668 So.2d 1010, 1011 (1996).

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02-IB02: FOIA Complaint Against Sussex County Council

Date Posted: Monday, January 14th, 2002

The Complainant alleged that Sussex County (“the County”) violated FOIA by failing to provide you with minutes of an executive session held on July 17, 2001. Held: the Council violated the open meeting requirements of FOIA by failing to maintain minutes of an executive session held on July 17, 2001.

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01-IB17 Re: Freedom of Information Act Complaint Against City of Dover

Date Posted: Monday, November 19th, 2001

Complainant alleged that the City of Dover violated the Freedom of Information Act (“FOIA”) because it failed to provide him with the names and addresses of retired city employees. Held: FOIA does not require the disclosure of personnel file information if that disclosure would constitute an invasion of personal privacy. Relying on both Supreme Court and Third Circuit case law, and distinguishing prior attorney general opinions related to the names and salaries of current public employees, the opinion holds that Delaware’s FOIA protects the “names and addresses of retired public employees because disclosure of that information would invade their privacy.” There was no FOIA violation.

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01-IB15 Re: Freedom of Information Act Complaint Against Sussex County

Date Posted: Tuesday, October 23rd, 2001

Complainant alleged that Sussex County violated the Freedom of Information Act because meetings between the County Administrator and his department heads and staff held for the purpose of developing an operating budget for the county were not noticed and open to the public. Held: FOIA does not apply to discussions between the County Administrator (a “body of one” under the statute) and his department heads and staff. “It would be unrealistic, indeed intolerable, to require of such professionals that every meeting, every contact, and every discussion with anyone from whom they would seek counsel or consultation to assist in acquiring the necessary information, data or intelligence needed to advise or guide the authority by whom they are employed, be a public meeting.” Nor did holding such meetings constitute a delegation of authority to a committee such that the committee meetings were required to be open. That is especially so considering the fact that the public has a meaningful opportunity to review and comment on the proposed budget when it is being considered by the full council.

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01-IB13 Re: Freedom of Information Act Complaint Dover Safety Advisory Committee

Date Posted: Thursday, August 9th, 2001

The Complainant alleged that the Dover Safety Advisory Committee violated the Freedom of Information Act (“FOIA”) by failing to notice in the agenda for a meeting that it would discuss the location of a proposed municipal waste transfer facility and the objections of the Dover Air Force Base to that location. Held: The issue arose sufficiently in advance of the meeting to be included in the notice and initial agenda, and the failure to do so deprived concerned citizens of the opportunity to appear and participate in the decision-making process. Because the committee did not have final authority over the location of the facility – it had merely issued a non-binding recommendation to the Kent County Levy Court that the location be rejected – no remedial measures were required.

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01-IB10: Re: Freedom of Information Act Complaints Against Sussex County Council

Date Posted: Tuesday, June 12th, 2001

The Complainant alleged that the Sussex County Council violated the Freedom of Information Act (“FOIA”) by (i) giving inadequate notice of a public “workshop” to discuss hurricane evacuation strategies and beach traffic; and (ii) giving inadequate notice of its consideration of the issuance of $4.5 million in bonds at committee and council meetings. Held: With respect to the “workshop,” the Attorney General rejected the council’s contention that it did not need to provide notice because no formal action was taken at the meeting. Fact gathering and discussion meetings such as the one at issue fall squarely within the open meeting requirements of FOIA. Given the nature of the meeting, however, no remediation was required for this violation. As for the committee and council meetings, the Attorney General found that the agenda item indicating that an application by a specific company would be considered at the meeting was insufficient notice when the nature of the application – a request for the issuance of $4.5 million in industrial revenue bonds – was not described at all. As a remedial measure, the Attorney General ordered the application process to start again, from the beginning, with a duly noticed meeting.

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01-IB04 RE: Freedom of Information Act Complaints Against New Castle County and the City of New Castle

Date Posted: Tuesday, February 27th, 2001

The Complainant alleged that New Castle County and the City of New Castle violated the Freedom of Information Act (“FOIA”) by failing to provide it with copies of the first page of all uniform collision reports for specified time periods. Held: Because the party requesting the information was a non-profit association wholly owned by a Nevada company, it was not a citizen of Delaware and was therefore not entitled to invoke Delaware’s FOIA. In any event, and relying on case law from the Delaware Superior Court, the opinion holds that the requested documents fell within the “investigatory files” exception to FOIA’s definition of public records. No violation of FOIA had occurred.

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01-IB03 Re: Freedom of Information Act Complaint Against Polytech School District

Date Posted: Friday, February 16th, 2001

The Complainant alleged that the Polytech School District violated the Freedom of Information Act by failing to post complete agendas for its meetings and failing to provide him with copies of the minutes of executive sessions. Held: With respect to the agendas, the district violated FOIA because it included the wrong reasoning for going into executive session on its agenda. The district considered collective bargaining negotiations to be a part of the FOIA authorization for executive sessions to discuss “personnel matters.” The opinion held that this was the wrong provision to rely on, and that because labor negotiations and collective bargaining agreements are explicitly exempted from FOIA’s definition of a “public record,” the board should have relied on the executive session authorization for discussions of documents that are excluded from the definition of public record, when “such discussions may disclose the content of such documents.” As for the minutes, the district was permitted to withhold them from the Complainant because disclosing the discussion would defeat the purpose of the executive session. The district pledged to utilize the correct reason for going into executive session in the future to discuss collective bargaining, and no additional remedial measures were ordered.

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