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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Date Posted: Monday, March 27th, 2006
Complainant alleged that the Newark City Council violated FOIA’s open meeting requirements by discussing public business at a meeting without providing the public with sufficient notice on the agenda. HELD: The notice requirements of FOIA do not preclude members of the public or the public body from raising a matter of public business outside the agenda. However, when a substantial matter not specifically noticed for public discussion comes up at a public meeting, there must be a compelling reason why the issue cannot wait for discussion until a later meeting to allow for proper notice under FOIA. It is not sufficient to state that no “formal action” was taken because action by a public body includes fact gathering, deliberations and discussions, all of which influence the public body’s final decision. In this case, the minutes of the meeting indicated that the Council engaged in a substantial discussion of a matter not on the meeting Agenda. Therefore, the discussion violated FOIA’s notice requirements. However, no remediation was necessary because the agenda for the very next Council meeting indicated that the discussion would continue at the next meeting, and that agenda and notice complied with FOIA.
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Date Posted: Monday, January 23rd, 2006
Complainant alleged that the Smyrna Town Council violated FOIA’s open meeting laws by holding a meeting, which was attended by two council members, without notice to the public to discuss an amendment to the Town’s Charter. The Town argued that the meeting was not a “public meeting” as defined by FOIA because a quorum of the members did not attend, and the two members in attendance did not constitute a subcommittee or ad hock committee subject to open meeting law. HELD: When a public body holds a “joint meeting” of various constituents and members of the public body, the AGs office determines: (i) whether this group of individuals from different organizations amounted to a public body under FOIA; and (ii) if not, whether the representatives present at the meeting constituted an ad hoc or subcommittee of the public body. In this case, the people in attendance at the meeting did not amount to a public body under FOIA. There was also no evidence in the record that suggested the Town appointed or established a committee that was represented at the challenged meeting.
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Date Posted: Monday, January 9th, 2006
Complainant alleged that the Town of Dagsboro (“Town”) violated FOIA by (i) failing to prepare minutes of executive sessions since June 2004; (ii) providing complainant with redacted copies of executive session minutes after they were prepared almost one year later; and (iii) discussing matters of public business in executive session for a purpose not authorized by law.
Held: (i) The Town violated FOIA by not preparing timely minutes of 11 executive sessions over a one year period. Although FOIA does not set a time limit for a public body to prepare minutes of its meeting, a reasonable time is by the time of the public body’s next scheduled meeting. A public body must be able to explain its failure to prepare and approve minutes in a timely manner; (ii) the burden of proof is on the custodian of records to justify the denial of access to records. The Town failed to meet this burden with respect to most minutes because it did not articulate reasonable and legitimate reasons why public disclosure of the executive session minutes would defeat any lawful purposes for those executive sessions. However, minutes relating to ongoing negotiations regarding a property acquisition could be withheld pursuant to 29 Del. C. §10004(f) until the conclusion of the acquisition; and (iii) FOIA does not authorize a discussion of a personnel handbook and delinquent taxes in executive session. It does authorize discussions involving the hiring and subsequent resignation of a new town administrator in executive session. However, because the alleged FOIA open meetings violations occurred more than six months before the petition, the AGs office will not require remediation. However, the public body must make the minutes of the unauthorized executive session open for public inspection.
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Date Posted: Monday, January 9th, 2006
Del. Op. Atty. Gen. 06-IB02 (Del.A.G.), 2006 WL 1242011 Office of the Attorney General State of Delaware Opinion No. 06-IB02 January 9, 2006 Re: Freedom of Information Act Complaint Against Town of Dagsboro *1 Mr. William B. Chandler, III 600 Main Street P.O. Box 87 Dagsboro, DE 19939 Dear Mr. Chandler: Our Office received your […]
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Date Posted: Wednesday, January 4th, 2006
The City of Wilmington Board of License and Inspection Review (“Board”) met in executive session on May 9, 2005 to decide an appeal for a one-time waiver of a vacant building registration fee. The complainant argued that the executive session was improper. The Board argued that complainant’s appeal was not timely and remediation was unnecessary because the decision to meet in executive session was inadvertent and constituted harmless error.
Held: The City of Wilmington Board of License and Inspection Review (“Board”) violated FOIA when it deliberated in executive session for a purpose not authorized by FOIA. Additionally, the decision reached by the Board affected a “substantial right” that would normally require remediation by the AG’s office. However the AG declined to order remediation because the matter was pending before the Superior Court of Delaware and the FOIA claims could be raised in that forum.
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Date Posted: Thursday, October 13th, 2005
Complainants allege that the Town Council violated FOIA open meeting and public records requirements by not: (1) timely posting public notice of a meeting; (2) ensuing the venue for the meeting of the Council was large enough to accommodate the public; (3) the Town Council met in executive session on for purposes not authorized by law; (4) the Town Council reached a consensus on matters of public business in executive session before voting on those matters in public without any further discussion; (5) the Town did not prepare and maintain minutes a meeting; and (6) the Town did not provide a requester with access to the minutes of prior Council meetings. Held: the Town did not violate FOIA in that it (1) posted timely public notice of a meeting held on July 7, 2005; (2) provided the public with reasonable access to attend the meeting; (3) prepared and maintained minutes of the meeting; and (4) provided reasonable access to minutes of previous meetings of the Town Council. However, the Town did violate FOIA by privately discussing the 2005-2006 budget prior to the meeting and then approving the budget without any discussion in public thereby depriving the public of the opportunity for the public to monitor and observe the budget approval process. The Town also failed to meet its burden of proof that it did not discuss two other matters of public business (code enforcement and real estate taxes), neither of which matters FOIA authorized for private discussion.
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Date Posted: Wednesday, September 7th, 2005
Complainant alleges that the County Council violated the FOIA open meeting requirements by holding a “special meeting” for 7 of the 13 members of the Council to discuss a pending lawsuit with the County Attorney because a meeting of 7 members of the County Council constitutes a meeting of a ‘public body.’ The ‘Special Meeting Notice’ appears to exclude not only the public but also the remaining County Council members who are not the subject of a recently filed lawsuit.” Held: the Council did not violate the open meeting requirements when 9 members of the Council met in executive session to discuss pending litigation with the County Attorney. FOIA authorizes the Council to meet in private with the County Attorney to discuss litigation strategy because an open meeting would have had an adverse effect on the litigation position of the Council and the individual defendants.
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