Delaware Department of Justice
Attorney General
Kathy Jennings

Attorney General's Opinions

97-IB23: FOIA Complaint Against Woodbridge School District

Date Posted: Tuesday, December 23rd, 1997

Complainant alleged the Woodbridge School District violated FOIA by (i) maintaining vague and non-specific meeting minutes and that the meetings should be tape recorded; (ii) the school districted noticed an emergency meeting to discuss the assistant superintendent’s contract but in fact discussed other issues; and (iii) the district improperly met in executive session to discuss personnel matters, but actually discussed matters not authorized for executive session. HELD: (i) Complaints lodged more than six months after the action by the public body that is the subject of the complaint will not be considered; (ii) FOIA does not require a public body to tape record its meetings or executive sessions; and (iii) meeting minutes need only include a record of those members present and a record by individual members of each vote taken an action agreed upon. FOIA does not require a detailed summary of discussions.

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97-IB22: FOIA Complaint Against City of Wilmington

Date Posted: Monday, November 24th, 1997

Complainant alleged that the City of Wilmington violated FOIA’s open meeting requirements by holding meetings of the Residency Review Board without notice to the public and by failing to maintain minutes of those meetings. The City did not dispute the allegation that it failed to provide notice of the meetings, but did provide copies of the minutes of those meetings. HELD: FOIA’s notice requirements apply to all meetings of public bodies regardless of whether formal action is taken by the body at the meeting. To remedy this violation, the Residency Review Board directed to notice a special meeting within thirty days of the date of the decision in order to discuss the principal matters discussed at its earlier meetings.

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97-IB20: RE: Freedom of Information Act Complaint Against Cape Henlopen School Dis

Date Posted: Monday, October 20th, 1997

Complainant alleged that the Cape Henlopen School District violated FOIA by holding a meeting without providing proper notice to the public, or disclosing on the agenda that the district might vote to spend public monies for new locally funded teaching positions. The District argued that the issue arose at the meeting, so could not be disclosed in advance. HELD: The District did not violate FOIA’s notice requirements. The meeting was attended by a number of parents and teachers, including the complainant, the public was not misled by the agenda posted, and the conversation evolved into a substantive discussion that arose during the course of the meeting consistent with FOIA.

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97-IB19: FOIA Complaint Against Milford City Council

Date Posted: Monday, October 20th, 1997

Complainant alleged that the Milford City Council violated FOIA’s open meeting requirements because the agendas for those meetings did not indicate that the Council might go into executive session, and that the Council entered executive session for purposes not authorized by FOIA. The Council admitted that the executive sessions were not held in full compliance with FOIA. HELD: The Council did not post notice of its intention to go into Executive session, the reasons for the session, nor were minutes of the session maintained. Because of these actions, any action taken by the Council by those meetings deemed voidable. Council directed to re-notice the mattes that were the subject of discussion at those two meetings for another meeting open to the public.

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97-IB18: FOIA Complaint Against the Town of Bridgeville

Date Posted: Tuesday, September 2nd, 1997

Complainant alleged that the Town of Bridgeville violated FOIA’s open meetings requirements because it did not post a notice of a meeting at least 7 days prior to the meeting. Town replied that under the circumstances, only 24 hours notice was required. HELD: FOIA permits emergency meetings only when necessary for the immediate preservation of the public peace, health or safety. An employment dispute between a police officer and the Town does not rise to the level of an emergency necessary to obviate the notice requirements of FOIA. Thus, Town violated FOIA by failing to explain in the notice why seven days’ notice could not be given. No remedial action necessary though with respect to the personnel matters. The Town met to decide whether to ask the AG’s office to investigate the employee’s complaint and the AG’s office had already decided not to conduct the requested investigation. The meeting must be renoticed to allow the public to observe the Town’s discussion of all other public business.

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97-IB17: RE: Freedom of Information Act Complaint Against City of New Castle

Date Posted: Thursday, August 28th, 1997

Complainant alleged that the Council of the City of New Castle violated FOIA’s open meeting requirements by holding a meeting of the Public Safety Review Committee without providing adequate notice to the public. HELD: The committee violated FOIA’s open meetings laws when it (i) failed to provide 7 days notice of its meetings; and (ii) the notices posted failed to include meeting agendas. No remediation required, however, since these were technical violations of FOIA.

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97-IB15 RE: Freedom of Information Act Complaint Against Caesar Rodney School District

Date Posted: Friday, August 22nd, 1997

Del. Op. Atty. Gen. 97-IB15 (Del.A.G.), 1997 WL 606474 Office of the Attorney General State of Delaware Opinion No. 97–IB15 August 22, 1997 RE: Freedom of Information Act Complaint Against Caesar Rodney School District *1 Mr. David Burke 66 West Fairfield Drive Dover, DE 19910 Dear Mr. Burke: By letter dated June 30, 1997 (received […]

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97-IB14: FOIA Complaint Against Red Clay Consolidated School District Board of Education

Date Posted: Tuesday, July 29th, 1997

Complaint alleged that the Red Clay Consolidated School District Board of Education (“Red Clay”) violated the public records and open meeting requirements of FOIA because (i) Red Clay did not provide a copy of an amended contract with the Montessori School at a public meeting on June 2, 1997; (ii) Red Clay required the News Journal to make a written request to the District’s counsel before providing access to other public records requested on June 3, 1997; and (iii) Red clay withheld the minutes of the executive session meeting held on June 2, 1997. HELD: (i) Red Clay provided the contract within the time frames set by FOIA. No FOIA violation found simply because complainant felt the contract should have been provided at the meeting upon request, and prior to a vote—FOIA requires reasonable access, not instantaneous access; (ii) no violation of FOIA if a public body requires requests for records to be in writing; and (iii) where Red Clay went into executive session to discuss potential litigation over granting a school charter where the issue was covered heavily by the media and community residents threatened to sue the district if the charter were approved, Red Clay could reasonably conclude that open discussion with its attorneys of the legal issues surrounding the charter application would have an adverse affect on the Board’s position in potential litigation challenging the legality of the charter school. However, disclosure of the minutes would not defeat the lawful purposes of the executive session due to the minutes’ lack of specificity about the District’s litigation strategy.

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97-IB13: RE: Freedom of Information Act Complaint Against City of Lewes

Date Posted: Monday, June 2nd, 1997

Complaint alleged that the City of Lewes violated FOIA’s open meeting requirements by not providing the required notice of meetings where public business was discussed. HELD: The public body violated FOIA by (i) failing to post agenda for meetings of the Personnel Policy Review Committee; and (ii) failing to maintain minutes of those meetings. Additionally, a joint meeting between members of the City Council and the Chamber of Commerce to discuss public business constituted a “meeting” for purposes of FOIA, even though no formal action was taken by the body. However, neither the Chamber of Commerce nor the City was required to provide notice of the meeting because the bodies were not a “public body” for purposes of FOIA because the Mayor and Council members in attendance were only there for informational purposes and did not actively participate in discussions of public business that were later the subject of formal action by the City Council at one of its own meetings. Since the meetings were recorded, City ordered to create minutes of the Committee meetings to date as remediation, and to prepare minutes for all future meetings. The Committee also ordered to notice a special meeting to discuss any formal report or recommendation made by the Committee since its inception, and to give proper notice of that meeting to the public so that interested citizens can attend and comment.

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97-IB08 RE: Freedom of Information Act Complaint Against Sussex County

Date Posted: Thursday, April 10th, 1997

Complaint alleged that Sussex County violated FOIA by not providing him with a copy of the official complete billing submitted by Delmarva Paving to whomever it was sent for the paving of a road. The County responded that it did not have responsive records in its custody and control because the contractor at issue was a subcontractor, and the country received no bills directly from Delmarva. HELD: FOIA cannot be used to compel production of documents in the possession of a private contractor. A general contractor’s “private negotiations with its subcontractors” are not a proper subject of public scrutiny.

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