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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




09-IB03 RE: Freedom of Information Act Complaint Against Sussex County

Date Posted: Wednesday, May 27th, 2009

Complainant asserts that County violated FOIA by charging an unreasonable amount for copies of text messages and emails which constitute approximately 1,180 pages. County requested a fee of $354 for paper copies and $227.12 for electronic copies on CD. County also charged another person same amount for same FOIA request. HELD: Charge was reasonable and reasonably calculated. However, County cannot charge for both requests unless it incurs duplicate costs for retrieval.

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09-IB02 5/05/09 Street v. Colonial School District

Date Posted: Tuesday, May 5th, 2009

Councilman Street asked whether the School District Board of Education (the “Board”) violated FOIA by removing a letter a member of the public distributed to the Board members prior to a public meeting and had a State Trooper escort that member of the public out of the building before the meeting started. Prior to the meeting when the Board Secretary began reviewing the letter, Mr. Hynson, a member of the public, approached the secretary and began yelling at him. The Board delayed the meeting for about six minutes in order for them to call the police. A State Trooper arrived and escorted Mr. Hynson from the building. According to witnesses, Mr. Hynson continued to yell the entire time. HELD: FOIA is silent as to whether a member of the public has the right to distribute papers to the members of a public body. FOIA is not concerned with the public’s ability to communicate with a public body, only with the public’s opportunity to observe that body. FOIA does allow a public body to remove a member of the public if they are “willfully and seriously disruptive.” The Board was justified in removing Mr. Hynson.

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09-IB01 Re: Delaware State Fire School Records

Date Posted: Thursday, February 5th, 2009

Senator Ennis asked whether the training records for courses taken at the Delaware State Fire School are public records subject to FOIA. HELD: Yes. The State Fire School is a public body subject to FOIA. The records do not constitute personnel or pupil records exempt from FOIA nor do they contain information which, if released, would result in invasion of privacy. However, personal information such as home addresses and social security numbers may be redacted.

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08-IB14: RE: Freedom of Information Act Complaint Against Sussex County

Date Posted: Wednesday, December 17th, 2008

Complainant alleged Sussex County violated FOIA by charging an unreasonable amount for copying records. Request was for electronic media download of current real property assessment date. County originally requested a flat fee of $12,000 then modified the charge to $3,000. County regulations allow $.30 per page for copies or “actual cost of reproduction” for records not subject to routine photocopying. County asserts that the information requested is made up of approximately 4 million records. HELD: County improperly equated each record with a copy. A record is not the same as a page. Electronic data cannot be charged on an arbitrary per record basis that has no relationship to the actual cost of reproduction.

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08-IB12: RE: Freedom of Information Act Complaint Against Camden-Wyoming Sewer and Water Authority

Date Posted: Friday, September 19th, 2008

Complainant alleged Camden-Wyoming Sewer and Water Authority (“CWSWA”) violated FOIA open records requirements by not providing a copy of a “Management Comment Letter from CWSWA’s auditors. CWSA asserts that the document is confidential as requested by the auditors. HELD: The letter would only be exempt from FOIA if it contained commercial or financial information that is privileged or confidential which it does not. A record that meets definition of public record is not entitled to exemption merely because the creator has designated it “confidential.” CWSA violated FOIA by not providing the letter.

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08-IB11: RE: Freedom of Information Act Complaint Against New Castle County

Date Posted: Tuesday, September 9th, 2008

Complainant alleged NCC violated FOIA open records requirements by not providing unredacted copy of email from private citizen to NCC Chief of Staff. Email copy was provided but name of private of citizen, an informant, was redacted. Complainant asserts NCC should reveal the identity of the informant to add details to the public debate. HELD: NCC not required to release name of informant. DOJ applies a balancing test weighing public’s interest in disclosure against public body’s interest in protecting sources. NCC’s interest in not discouraging citizens from reporting potentially illegal conduct is greater than the interest to release the identity of the informant.

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08-IB10 RE: Freedom of Information Act Complaint Against City of Rehoboth Beach

Date Posted: Wednesday, July 16th, 2008

Complainant alleged City violated FOIA open meeting requirements by not publicly noticing meetings relating to selection of engineering firm to reconstruct boardwalk, meeting was not open to public and minutes were not made available. City acknowledged it had meetings with engineering firms who submitted proposals and that meetings were not open to public. City asserted that these meetings were executive sessions to consider confidential/commercial information contained in the proposals. City did hold properly noticed public meetings to vote on final selection of engineering firm but no agenda provided notice or voting on executive session to consider the proposals. HELD: Proposals did contain confidential/commercial information which were properly considered in executive session. However, City violated FOIA by not noticing and voting on executive session. Remediation did not include invalidation of contract with engineering firm, but did require City to enter into consent agreement with Attorney General to require City to provide notice of any and all executive sessions to the DDOJ for one year.

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08-IB09: RE: Freedom of Information Act Complaint Against City of Rehoboth Beach Planning Commission

Date Posted: Tuesday, May 27th, 2008

Complainant alleged that Rehoboth Beach Planning Commission (“RBPC”) did not properly notice reconsideration of a partition application when it did not list the possibility of waiver of the municipal code provision to consider the application. Agenda reflected reconsideration of the partition application but did not list possibility of waiver. HELD: Major topic of discussion for the meeting was reconsideration of the partition application which was properly and timely posted in the agenda. Waiver was only the procedural mechanism by RBPC allowed application to proceed. It was not a separate and distinct topic which required a separate listing in agenda. FOIA does not require public body to detail in agenda every possible course of action it might take in discussing an agenda topic.

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08-IB08: RE: Freedom of Information Act Complaint Against City of Rehoboth Beach

Date Posted: Friday, May 23rd, 2008

Complainant alleged that City violated FOIA’s open meetings requirements when it adopted ordinance reducing number of members and term limits of Rehoboth Beach Planning Commission (“RBPC”) by not properly including those matters on agenda and discussed matter privately in serial emails with a quorum of City Commissioners. Agenda referred to RBPC as a “committee” and not “commission,” and did not list issue of term limits. HELD: Definition of “committee” and “commission” are not identical and possibility of confusion exists. Issue of term limits was also not properly noticed because it was neither on agenda nor did it arise at time of meeting. City violated FOIA by not clarifying that commissions and boards, as well as committees, would be discussed at meeting and not including term limits as a matter to be discussed. Emails complained of do not constitute closed meeting of a quorum in violation of FOIA. Emails did not stimulate discussion or any action by City Commissioners in advance of public meeting. No remediation necessary because departures from FOIA did not rise to level of egregiousness to warrant the very serious sanction of invalidating votes.

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08-IB07: RE: Freedom of Information Act Complaint Against Town of Middletown

Date Posted: Monday, May 5th, 2008

Complainant alleges that Town violated FOIA regarding the Middletown Action Network (“MAN”) and amendments to town charter. Among other things, Complainant alleges that (i) the Mayor improperly appointed two additional MAN members’ (ii) Middletown held non-public MAN meetings; and (iii) an amendment of the Middletown charter was formulated without public notice and the amendment was not mentioned in Mayor’s oral remarks at the public meeting. Town acknowledged that MAN was created by ordinance on October 1, 2007 and held two or three meetings after its creation, but prior to the approval of their bylaws, but that Mayor did not appoint two additional members. Therefore, MAN meetings were not subject to FOIA. Town further acknowledged that charter amendment removed a $4 million debt limit and that amendment was properly and timely notice for a public meeting. HELD: Mayor not required to hold public meeting to take executive action even if he chose to add members to MAN. The MAN meetings were held in violation of FOIA. MAN became a public body when ordinance creating it was passed. However, FOIA violations are those of MAN, not the Town. With respect to Mayor’s comments about charter amendment at public meeting, FOIA does not concern itself with content of public meeting unless the meeting fails to conform to proposed agenda. Accordingly, Mayor’s oral remarks are not a FOIA issue.

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