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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




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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A.G. BRADY FILES ACTION AGAINST RIVERVIEW CEMETERY

Date Posted: Wednesday, January 31st, 2001

Contact: Todd Hallidy Phone: (302) 577-8314 (Wilmington, DE) — Attorney General M. Jane Brady today announced that the Consumer Protection Unit has filed a civil enforcement suit in the Court of Chancery in connection with neglect and mismanagement of the Riverview Cemetery. The suit specifically names Riverview Cemetery Corp., some local and state Odd Fellows […]

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01-IB02: FOIA Complaint Against Town of Odessa

Date Posted: Tuesday, January 30th, 2001

The Complainant alleged that the Town of Odessa violated the Freedom of Information Act (“FOIA”) by failing to give timely notice of a special meeting. Held: The town violated FOIA by failing to include in its notice of special meeting an explanation of why seven days’ notice could not be given. The town voluntarily cured its violation at the next regularly scheduled meeting, so no further remedial measures were required.

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01-IB01: FOIA Complaint Against Indian River School District

Date Posted: Tuesday, January 16th, 2001

The Complainant alleged that the Indian River School District violated the Freedom of Information Act (“FOIA”) by going into executive session for a purpose not authorized by law. Held: While most of the issues discussed during executive session were well within the categories of subjects appropriate for executive session discussion under FOIA, the inclusion of “Boardsmanship” – more specifically, a request by the Board President that one of the other members of the board resign – on the agenda for the executive session was inappropriate. The matter was brought up at the public meeting after executive session ended, however, so the board was not required to reconvene and hold its discussion in public. The district was ordered to cease and desist its practice of discussing similar issues in executive session, as “[s]uch issues go to the very heart of the open meeting law: to allow the public the opportunity to be involved in debates among elected officials on matters of public interest.”

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00-IB19 Re: Freedom of Information Act Complaint Against Woodbridge School District

Date Posted: Wednesday, November 8th, 2000

The Complainant alleged that the Woodbridge School District violated the Freedom of Information Act (“FOIA”) by failing to provide him with access to public records. Held: While the district’s response was not as “timely as it should have been,” given the fact that, among other things, the custodian of certain of the information was on vacation and other information had to be compiled and prepared to respond to the request, the delay did not result in a violation of FOIA. The Complainant having received (or the district having agreed to make available) all information that he had requested, there was no FOIA violation.

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00-IB18: Re: Freedom of Information Act Complaint Against City of Newark

Date Posted: Tuesday, October 31st, 2000

Complainant alleged that the City of Newark violated the Freedom of Information Act (“FOIA”) by failing to provide him with information and by providing inadequate notice of its intent to vote on a new power generating project. Held: FOIA does not require a public body to create documents that do not already exist, so there was no violation with respect to the Complainant’s request for information. As to the notice issue, a “general statement” of the issues expected to be discussed is sufficient under FOIA, so an agenda that included the proposed power generation project as an item for discussion did not need to also specify that the council might vote to authorize the project. There was no FOIA violation.

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00-IB12: Re: Freedom of Information Act Complaints Against Woodbridge School District

Date Posted: Wednesday, June 28th, 2000

This opinion concerns three separate claims of Freedom of Information Act (“FOIA”) violations brought by Complainant against Woodbridge School District, arising out of board and committee meetings leading to an ultimately unsuccessful referendum. Held: FOIA does not require that public bodies holding public meetings permit members of the public to speak at such public meetings. In addition, and based on case law from the Delaware Court of Chancery, technical violations of FOIA – such as notice language indicating that the board will “reconsider” an issue when it is technically just “considering” the issue for the first time – are not sufficient to support either declaratory or injunctive relief against the public body. While there were certain technical violations of FOIA made by the district, none rose to a level sufficient to warrant remedial measures. The district was warned to be more careful in the future.

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00-IB08: Re: Freedom of Information Act Complaint Against University of Delaware

Date Posted: Wednesday, May 24th, 2000

The Complainant alleged that the University of Delaware had violated the Freedom of Information Act (“FOIA”) by failing to answer a series of questions he had posed to the University in writing, and by meeting in executive session to approve a land transfer without public notice. Held: FOIA does not require public bodies to answer written questions. Further, FOIA does not include records in the custody of the University in its definition of “public records” unless such records “relat[e] to the expenditure of public funds.” FOIA further exempts the University from its open meeting requirements other than for meetings of the “full Board of Trustees.” Accordingly, the executive session held by a committee of the Board of Trustees was not subject to FOIA’s open meeting requirements, and the University’s agreement to provide any documents related to the expenditure of state funds negated any claim of violation with respect to access to public records.

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00-IB07 Re: Freedom of Information Act Complaints Against Woodbridge School District

Date Posted: Friday, April 28th, 2000

The Complainants alleged that the Woodbridge School District had violated the Freedom of Information Act (“FOIA”) in a number of ways while considering how to respond to a failed referendum. Held: (1) A three-member committee of the district’s school board was a “public body” within the meaning of FOIA and it violated FOIA by failing to provide adequate notice of its intention to meet and the subject of its planned meeting, and the district’s defense that it was not required to give notice because no “formal action” was taken at the meeting was rejected; (2) the district’s last-minute change to an agenda for a meeting on March 21, 2000 to include consideration of a potential second referendum violated the seven-day notice requirements of FOIA and did not arise during the course of the meeting; (3) even though no complaint was filed, the Attorney General concluded that a separate FOIA violation occurred in connection with the agenda for a later, April 17, 2000 meeting of the district board; and (4) the district’s response to the complaint, which included the setting of a new meeting to consider the relevant issues and providing adequate notice, complied with the requirements of FOIA. Given the newly-scheduled and adequately-noticed upcoming special meeting, no additional remedies were deemed required at that time.

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00-IB05: FOIA Complaint Against Red Clay Consolidated School District

Date Posted: Friday, February 18th, 2000

The Complainant alleged that the Red Clay Consolidated School District had violated the Freedom of Information Act (“FOIA”) at a meeting in November 1998, and again by failing to provide executive session minutes for a December 16, 1998 executive session. The district responded by arguing that the complaint was time-barred and, in any event, it had provided the Complainant with a copy of the executive session minutes in question. Held: The request for executive session meeting minutes was moot. As for the complaint about the November 1998 meeting, FOIA requires a citizen to complain about a violation of its terms within 60 days of it learning of such action, and in no event later than 6 months after the action. In light of the fact that more than six months had passed since the meeting in question, no further action was taken on the complaint.

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