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Delaware Department of Justice
Attorney General
Kathy Jennings


Attorney General's Opinions




08-IB06 03/27/08 FOIA Opinion Letter to Mr. Kramer re: FOIA Complaint Concerning Woodbridge School District

Date Posted: Thursday, March 27th, 2008

Complainant alleges that School District violated FOIA by awarding a pole building contract without proper agenda notice. Agenda as originally published contained no reference to the pole contract. Amended agenda posted 5 days before the meeting listed the pole building contract and the reason it was added to the agenda. HELD: School district did not violate FOIA’s seven day posting requirement because it added a reason for the late posting.

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08-IB05 RE: Freedom of Information Act Complaint Against Town of Middletown

Date Posted: Friday, February 22nd, 2008

Complainants alleged Town violated FOIA open records and open meeting requirements regarding payment of employee bonuses where they received no document responsive to their request for methodology in calculating and authorizing payments. They further assert that benefits should have been approved at public meeting. Town asserts that it has no written policy governing amount of bonuses and when and if they are given out. It has only a line item in its budget for “Employee Benefits – Other” from which Middletown paid the bonuses. HELD: FOIA does not require a public body to create a document in order to respond to a FOIA request. The Middletown Mayor is a body of one and, therefore, is not subject to FOIA’s open meeting requirement pursuant to 29 Del. C. §10004(h)(6).

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08-IB04 RE: Freedom of Information Act Complaint Against Delaware State University

Date Posted: Wednesday, February 20th, 2008

Complainant alleged that DSU Board violated FOIA open meeting requirements in noticing and conducting a meeting via teleconference. Agenda was timely posted and reflected that meeting would be conducted via teleconference, but did not state the place where meeting would be held. Board by-laws permit board meetings by teleconference. HELD: DSU Board violated FOIA when it noticed meeting by not including the place where meeting would be held. DSU Board did not violate FOIA because by-laws expressly permit board meetings by teleconference.

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08-IB03 Re: Freedom of Information Act Complaint Against Kent County Levy Court

Date Posted: Wednesday, February 20th, 2008

Complainant alleged Levy Court violated FOIA open meeting requirements by holding series of meetings with County planning staff and members of working group without notice to the public. Levy Court admitted that series of meetings were held but asserts they were not subject to FOIA because a quorum was not present. The Levy Court further admitted that meetings were planned in advance to build a consensus on updating County’s comprehensive Plan in a way that the commissioners were not “on stage” and felt the need to talk to crowds. HELD: Levy Court violated FOIA when all seven members met privately in a series of five subquorum meetings without notice to the public. The nature, timing and substance of those communications amounted to meeting of a constructive quorum without notice to the public.

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08-IB02: RE: Freedom of Information Act Complaint Against Town of Cheswold

Date Posted: Wednesday, January 30th, 2008

Complainant alleged Town violated open meeting requirements of FOI by meeting in executive session to discuss impact fees for development. Town asserted executive session was brief strategy session concerning impact fees. Agenda contained no reference to executive session. HELD: Town violated FOIA by not providing public with advance notice of executive session on agenda. Executive sessions may be called in two limited contexts: pending/potential litigation and collective bargaining, but only when an open meeting would have an adverse impact on bargaining or litigation position of public body. Town violated FOIA by going into executive session for a purpose not authorized by law.

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08-IB01 1/28/2008 Holmes v. Colonial

Date Posted: Monday, January 28th, 2008

Complainant alleged School Board violated open meeting requirement by not allowing her to speak at public meeting concerning nephew’s expulsion by School Board. School Board admitted it invited Complainant to speak but that she was not permitted to speak about nephew’s expulsion because that was not a matter of public concern. HELD: FOIA does not require a public body to allow members of the public to speak during a public meeting. There is nothing in the text of the declaration of policy or in the open meeting provision requiring public comment or guaranteeing the public the right to participate.

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07-IB25 RE: Freedom of Information Act Complaint Against Town of Bethel

Date Posted: Thursday, December 27th, 2007

The Complainant alleged the Town Council of Bethel (the “Council”) conducted an “open meeting” in violation of the Freedom of Information Act (“FOIA”) by deciding to contract with Atlantic Well Drilling and issue the necessary permits without first discussing the matter in a public meeting. Held: the “open meeting” law was not violated because approval was given by less than a forum of the Council; approval may have been ultra vires, but it did not implicate FOIA.

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07-IB24: Re: Freedom of Information Act Complaints Against Town of Dewey Beach

Date Posted: Thursday, December 27th, 2007

The Complainant alleged the Town Council of Dewey Beach (the “Council”) violated the Freedom of Information Act (“FOIA”) by: (1) not providing the public with adequate notice about the building height of a Ruddertowne development proposal discussed at a series of meetings in May-July 2007; and (2) not providing the public with updated and complete copies of the Town’s draft Comprehensive Plan. Held: the Council provided adequate notice that the development proposal and building height would be discussed at the meetings, and copies of the Comprehensive plan were available for inspection as required by FOIA.

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07-IB21 Re: Freedom of Information Act Complaint Against City of Wilmington

Date Posted: Monday, October 22nd, 2007

The Complainant alleged the City of Wilmington (the “City”) violated the Freedom of Information Act (“FOIA”) by not providing the Complainant with requested records pertaining to the South Walnut Street Urban Renewal Plan on the basis of “pending or potential litigation.” Held: the City violated the public record requirements of FOIA because there were insufficient objective indicators that litigation between the Complainant’s clients and the City was reasonably foreseeable.

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07-IB20: Re: Freedom of Information Act Complaint Against Town of Cheswold

Date Posted: Monday, September 10th, 2007

The Complainant alleged the Town Council of Cheswold (the “Council”) violated the Freedom of Information Act (“FOIA”) by meeting in executive session during a public meeting to discuss a “Personnel Matter,” after which the Council reconvened in public to vote to fire a member of the Cheswold Planning Commission.” Held: The agenda for the Council meeting satisfied the notice requirements of FOIA by stating the purpose of the executive session listed in the agenda: to discuss a personnel matter. FOIA did not require the Council to name the person in the agenda who was to be the subject of that private discussion.

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