Date Posted: Monday, August 7th, 2006
Complainant alleged that four members of the Smyrna Town Council violated FOIA by meeting privately to discuss a matter of public business. The four members denied meeting to discuss public business, but submitted affidavits swearing that they each contacted the Town manager separately to raise similar concerns. HELD: A constructive quorum may occur when the members of a public body, sufficient in number to constitute a quorum, engage in an interactive exchange of thoughts and opinions and the members are asked to vote or adopt a particular point of view or reach a consensus on what action to take. In this case, there were several one-on-one discussions between three members of the Council, but those serial discussions did not involve a quorum of the seven member Council so as to trigger the potential application of the open meeting laws.
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Date Posted: Monday, July 24th, 2006
Complainant alleged that the Brandywine School District Board of Education violated FOIA’s open meeting requirements by (i) not providing sufficient notice to the public about the matters the Board would discuss in executive session; (ii) discussing matters of public business in private not authorized by FOIA; and (iii) not preparing adequate minutes of executive session meetings. The Board contended it only discussed job applicants and personnel matters in executive session and the minutes were prepared using the format it uses for executive session and that the form complied with FOIA. HELD: (i) The Board violated FOIA’s notice requirements by not disclosing in the agenda that the Board would discuss the qualifications of job applicants for the position of superintendent; (ii) the Board violated FOIA’s notice requirements by discussing several procedural matters at the meeting which FOIA did not authorize for executive session; but (iii) the format of the minutes of the executive session—which included the names of Board members in attendance, the motion to vote and go into executive session, the general nature of the matters discussed, and the motion and vote to adjourn the executive session–did not violate FOIA b/c they met the minimum requirements of FOIA. There is no clearly implied statutory requirement to summarize the subjects discussed with any degree of specificity in the minutes of executive sessions.
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Date Posted: Wednesday, July 12th, 2006
Del. Op. Atty. Gen. 06-IB14 (Del.A.G.), 2006 WL 2355968 Office of the Attorney General State of Delaware Opinion No. 06–IB14 July 12, 2006 Re: Freedom of Information Act Complaint Against Town of Middletown *1 Mr. Jeff Bruette 116 Sleepy Hollow Drive, Suite C Middletown, DE 19709 Dear Mr. Bruette: Our Office received your complaint dated […]
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Date Posted: Wednesday, July 12th, 2006
Complainant alleged that the Town of Middletown violated the public records requirements of FOIA by denying complainant’s request for loan agreements between the Town and Trinity Church and copies of all agreements for loans extended by the Town to any individuals. The Town denied the requests based on 29 Del. C. §10002(g)(1) and (2), arguing that the documents requested are not public records. HELD: Interest free loans made to employees are a form of compensation. Therefore, the disclosure of these loans and information about the employee that received the loan would not constitute an invasion of privacy and is therefore not protected by FOIA. The information is also not “confidential financial information” within the meaning of FOIA because the loan information did not come from a person. The exemption is meant to protected “technical or financial data submitted by an applicant to a Government lending or loan guarantee agency.” In this case, the loan agreements were generated by the Town in the course of its involvement with borrowers and was not exempt from disclosure. Although Town was required to disclose the loan agreements, Town was instructed to redact confidential information such as personal financial statements, tax returns, home addresses and telephone numbers, social security numbers and bank account numbers.
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Date Posted: Friday, June 23rd, 2006
Complainant alleged that the Town of Camden violated FOIA on numerous specific occasions by denying access to public records. HELD: (i) absent evidence of the actual submission of a FOIA request, no violation can be found; (ii) representations by the Town’s counsel that the Town searched for and produced the only responsive records in its possession are sufficient for purpose of FOIA; (iii) producing responsive documents within ten days of the request was reasonable and did not violate FOIA; and (iv) FOIA does not prohibit a public body’s requirement that FOIA requests be made in writing.
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Date Posted: Monday, June 19th, 2006
Complainant alleged that the City of Dover violated FOIA by meeting in executive session to interview candidates for the position Director of Planning and Inspections. HELD: The City did not violate FOIA by meeting in executive session for this purpose. FOIA authorizes a public body to meet in executive session to discuss an applicant’s qualifications to hold a job. However, the City violated FOIA by voting during that executive session on the candidate selection because FOIA does not permit straw polling, nor does FOIA allow public bodies to reach consensus votes during executive session.
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Date Posted: Wednesday, May 31st, 2006
Complainant alleged that the Capital School District violated FOIA when it did not provide information regarding an employee’s attendance records and sign-out sheets. HELD: Overwhelming weight of authority in other states and federal cases leads office to believe that Delaware courts would hold that the personnel file exemption under Delaware’s FOIA does not exempt from disclosure the attendance records or time sheets of a public employee because disclosure would not constitute an invasion of personal privacy. Just as the public has a right to know the salary paid to public employees, the public also has a right to know when their public employees are and are not performing the duties for which they are paid. A Public body may redact from attendance records or time sheets of a public employee information regarding the specific nature of his or her illness or medical treatment of the name of the doctor.
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Date Posted: Thursday, May 4th, 2006
Complainant alleged that the Cape Henlopen School district violated FOIA by denying a records request for documents relating to a charitable contribution referenced on a radio broadcast. Counsel for the School District verified that there were no records responsive to complainant’s request. HELD: FOIA does not require a public body to produce public records that do not exist, and it is the office’s practice to accept representations from an attorney for the custodian of public records that such documents do not exist for purposes of FOIA.
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Date Posted: Tuesday, April 25th, 2006
Complainant alleged that the Town of Townsend violated FOIA when it (i) posted notices of the Town Council’s meetings at the Town Hall instead of the meeting location; (ii) failed to give the public adequate notice of a dangerous building ordinance adopted by the Town at a workshop; (iii) charging an unreasonable fee for copying public records; and (iv) requiring a person to make a request for public records to state the reason for the request. HELD: (i) The Town complied with FOIA’s public notice requirements by posting notice of the meetings in Town Hall, its principal office. FOIA only requires a posting at the meeting location if the public body does not have a principal office; (ii) including discussion of the dangerous building ordinance on the meeting/workshop agenda was sufficient notice to satisfy FOIA’s notice provisions; (iii) charges for copying public records were reasonable under FOIA; and (iv) FOIA does not give a public body any authority to withhold public records because the request is irresponsible or frivolous, although the pending/potential litigation exemption provides a narrow exception to this general rule. The purpose of a FOIA request for records is irrelevant and a public body cannot ask the reason for the request or condition the processing of the request on a statement of purpose by the requestor.
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Date Posted: Thursday, April 6th, 2006
Complainant alleged that the Woodbridge School District violated the open meeting requirements of FOIA when it posted an amended agenda for a public meeting less than seven days in advance of that meeting, and failed to indicate why the amended agenda was not available at the time of the original posting. The School District provided a copy of the amended agenda, which included reasons for the amendments on the last page of the agenda. Complainant argued this was not a “conspicuous posting” and that the notice and agenda still violated FOIA. HELD: Section 10004(e)(5) sets forth circumstances under which a public body may post an amended agenda less than 7 days before, but no later than 6 hours in advance, of a public meeting. The public body must provide reasons for the amendment, but this exception does not authorize a public body to amend the agenda prior to a meeting for any reason. Rather, these sorts of amendments apply to add items that come up suddenly and cannot be deferred to a later meeting. Under the circumstances of this case, the District’s reasons for posting an amended agenda less than seven days in advance of the meeting were deemed proper under FOIA and no violation was found. Additionally, the use of a double-sided agenda did not violate FOIA under the circumstances because the agenda was posted at the principal’s office, did not put a burden on members of the public to search out to discover public meetings, and the page numbering on the agenda clearly alerted members of the public to the existence of more pages.
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