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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




00-IB02: FOIA Complaint Against Town of Bellefonte

Date Posted: Monday, January 10th, 2000

The Complainant alleged that the Town of Bellefonte had violated the Freedom of Information Act (“FOIA”) by not providing him with access to “all the town records past and current” at a time that was convenient to the Complainant. The town responded that it had arranged for all of the records in its possession to be available for inspection (with a photocopier available on location) at an open meeting, and that it had separately proposed thirty different hours in January 1998 when the Complainant could come in and review the available records. Held: The town’s response was reasonable and not a violation of FOIA. The town had made the records in its possession available on a number of occasions and at varying times. The town should not be “liable for [Complainant’s] failure or refusal to avail [himself] of any of those times.”

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99-IB17: FOIA Complaint Against Town of Townsend

Date Posted: Wednesday, December 22nd, 1999

The Complainant alleged that the Town of Townsend violated the Freedom of Information Act in reviewing and approving a measure to mandate trash collection. Held: Upon review of the notice and agenda, the town complied with the notice requirements of FOIA in discussing and, ultimately, approving a set of mandatory trash collection procedures. No FOIA violation had occurred.

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99-IB16: FOIA Complaint Against Del. Dept. of Transportation and City of Wilmington

Date Posted: Friday, December 17th, 1999

The Complainant alleged that the Delaware Department of Transportation and the City of Wilmington had violated the Freedom of Information Act (“FOIA”). Held: FOIA does not permit the Attorney General to adjudicate any FOIA dispute between a citizen and a department that the Attorney General is obliged to represent, such as the Delaware Department of Transportation. In any event, the Complainant had not identified any meetings that were held in violation of FOIA or public records that were not provided to him upon request. Instead, the complaint focused on allegations of other statutory violations by the City of Wilmington, which were beyond the scope of the Attorney General’s FOIA jurisdiction. No relief was therefore warranted.

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99-IB15 Re: Freedom of Information Act Complaint Against City of Newark

Date Posted: Thursday, December 9th, 1999

The Complainant alleged that the City of Newark violated the Freedom of Information Act by holding a meeting to discuss public business that was not open to the public. The City responded that the meeting in question was not a meeting of a council committee or other public body, but included representatives of the City, the State of Delaware and other state agencies to discuss a letter of award with the consulting firm that had been the winning bidder for a city contract. Held: The meeting was not one of a “public body” and it was therefore not required to be open. It included representatives across a number of state agencies, and largely consisted of City employees, not members of the City council. No FOIA violation had occurred.

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99-IB14 RE: Freedom of Information Act Complaint Against Town of Elsmere

Date Posted: Friday, November 5th, 1999

The Complainant alleged that the Town of Elsmere had violated the Freedom of Information Act (“FOIA”) by refusing to permit him to review documents in a police complaint file regarding an unregistered motor vehicle parked in Complainant’s driveway. The Town argued that the “investigative file” exception to FOIA exempted the documents from disclosure. Held: Relying on case law in the Court of Chancery, the opinion held that the “investigative file” exception to FOIA applies even after a file is closed, and especially with respect to cases where no criminal charges are filed. The records requested were therefore not “public records” within the meaning of FOIA, and no violation occurred.

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99-IB12 RE: Freedom of Information Act Complaint Against Brandywine School District

Date Posted: Tuesday, September 21st, 1999

The Complainant alleged that the Brandywine School District had violated the Freedom of Information Act (“FOIA”) by failing to provide him with the names of the District Advisory Committee and such committee’s report and recommendations. The district responded that no such committee had been created, and it could not provide documents that did not exist. Held: Neither federal nor Delaware law requires a state agency to create a document that does not exist in order to satisfy a FOIA request. There was therefore no FOIA violation.

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99-IB11: FOIA Complaint Against City of Newark

Date Posted: Friday, June 25th, 1999

The Complainant alleged that the City of Newark had violated the Freedom of Information Act (“FOIA”) at its March 22, 1999 City Council meeting by changing its agenda at the start of that meeting to include a $675,000 increase to the 1999 city budget so that the city could consummate a purchase of real property it had contracted to buy in a March 10, 1999 agreement. Held: Because the agreement had been entered into 12 days before the meeting in question, the City’s defense that it could amend its agenda to reflect issues that “arise at the time of the public body’s meeting” under FOIA was insufficient. The City was directed to place the budget amendment on the agenda of the next regularly scheduled meeting or at a special meeting held with adequate notice and opportunity for the public to be heard.

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99-IB08: FOIA Complaint Against Christina School District

Date Posted: Wednesday, June 9th, 1999

The Complainant alleged that the Christina School District had violated the Freedom of Information Act (“FOIA”) by charging her for the costs of retrieving and copying public records that had been requested before the district enacted a set of administrative procedures providing for the charging of costs associated with FOIA responses. Held: Costs could only be assessed for requests that came in after the district implemented its policy for cost recoupment. The district violated FOIA by delaying its response to the Complainant’s request until after it had promulgated regulations requiring a requesting party to pay for the administrative costs associated with a search, and then charging the Complainant for such costs.

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99-IB05: FOIA Complaint Against Town of Bethany Beach

Date Posted: Wednesday, May 12th, 1999

The Complainant alleged that the Town of Bethany Beach had violated the Freedom of Information Act (“FOIA”) by failing to give notice that it would discuss the hiring of a new police officer at its March 19, 1999 meeting. Held: The notice and agenda for the meeting indicated that the Town Council would go into executive session to discuss personnel matters. FOIA does not require an agency to identify the specific personnel it intends to discuss in executive session, including job applicants. There was therefore no FOIA violation.

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99-IB03: Re: Freedom of Information Act Complaint Against Town of Bethany Beach

Date Posted: Wednesday, April 28th, 1999

The Complainant alleged that the Town of Bethany Beach had violated the Freedom of Information Act (“FOIA”) by (i) meeting in executive sessions on three occasions for purposes not authorized by law; and (ii) not giving the required notice of a special meeting held on February 19, 1999. The Town admitted that its Council had gone into executive session on the three days indicated and that it had not given the seven days notice of the special meeting typically required by FOIA, but argued that it had appropriate reasons for doing so. Held: With respect to the executive sessions, the Attorney General’s office reviewed the confidential minutes of the executive sessions and determined that they were held for appropriate purposes – to discuss personnel matters as they relate to specific employees. As for the notice of the Special Meeting, the notice itself was timely – because it was posted more than 24 hours before the meeting – but it was otherwise deficient because it did not explain the reasons why the Town was unable to meet the typical 7-day advance notice requirement. The Town was not required to recall the meeting.

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