Delaware Department of Justice
Attorney General
Kathy Jennings

Attorney General's Opinions

96-IB20: FOIA-Georgetown Second Complaint

Date Posted: Monday, May 20th, 1996

The Complainant alleged that the Georgetown Town Council appointed individuals to positions without holding a public meeting. Held: No such appointments were made. Second, the Complainant alleged that meeting minutes were in violation of the Freedom of Information Act. Held: the minutes comply with the statutory requirements of the Act. Third, the Complainant alleged that the Town Council has improperly denied the public the right to comment on matters. Held: this is a legitimate exercise of a public body’s authority to determine the agenda but if the public does bring up a matter of concern, the Council should honor a request to add it to the agenda. Fourth, the Complainant alleged that the Council fails to tape meetings, in violation of the Act. Held: there is no requirement that public meetings must be recorded. Finally, the Complainant expressed concern in regards to the public record keeping of the Council. Held: this complaint lacks specificity and is not addressed.

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96-IB16: FOIA-Termination of Town Manager (Georgetown)

Date Posted: Wednesday, May 15th, 1996

The Complainant sought a decision on the same allegations discussed in A.G. Opinion 96-IB15. Held: such opinion has already been rendered. The Office of the Attorney General will not issue an opinion as to whether the Georgetown Town Charter has been violated as that is not within the Office’s jurisdiction.

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96-IB15: FOIA-Town of Georgetown-Final Written Determination

Date Posted: Friday, May 10th, 1996

Complainants alleged twenty-one violations of the Freedom of Information Act by the Georgetown Town Council. Held: the Council violated the Act multiple times by failing to provide reasons why agendas were not posted in the required timeframe. The Council violated the Act by failing to timely post notices of meetings, failing to keep proper minutes and failing to post agendas. The Council violated the Act by failing to include reasons why certain agendas were not posted on time. However, when reasons were given, there are no requirements governing how specific the reasons must be. The Council also violated the Act by not listing certain items on the agenda which were put up for a vote during the meeting, including the hiring by “resolution” of special counsel to the Council. This office specifically finds that in order for a public body to ratify illegal acts, that the former illegal acts and/or action taken by the Town Council in previous public meetings and hearings, must be listed on the agenda and public notice for the meeting in order to provide notice to the public as to what items are being ratified in open session.

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96-IB13 Re: Freedom of Information Act Complaint Salary Information for Municipal Employees

Date Posted: Monday, May 6th, 1996

The Complainant alleged that multiple municipalities improperly withheld the names and salaries of municipality employees. The municipalities argued that releasing such information would be a violation of personal privacy, and that to release the information would require retrieving the information from tax forms which are exempt from disclosure. Held: salaries and names must be disclosed. If they are contained in documents which are exempted from disclosure, the information should be taken from those documents and provided in a releasable format. How the municipalities would like to release the information to the Complainant is up to the municipalities.

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96-IB12: FOIA Complaint-Woodbridge School District

Date Posted: Monday, April 15th, 1996

The Complainant alleged that the Woodbridge school board held closed meetings in violation of the Freedom of Information Act. Complainant alleged that a quorum of school board members met before and after school board meetings and discussed public business. The school board argued that on two of the three alleged occasions, the school board members were simply talking, not about public business. Held: the board violated FOIA when a quorum discussed public business in the form of discussing the possibility of a Little League team renting out the gym. However, this violation was later cured when the full board met in public meeting, discussed the issue and voted. There was no evidence that public business was discussed during the other two instances, but board members should be cognizant of such discussions as they bear the burden of refuting violation claims.

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96-IB11: Re: Motion for Reconsideration – Georgetown Town Council Lynn M. DeLeon – Freedom of Information Act Complaint, 29 Del. C. §10005(e)

Date Posted: Wednesday, March 20th, 1996

Georgetown Town Council motioned for reargument on A.G. Opinion 96-IB05 based on the decision of Kansas City Star Company v. Fulson, 859 S.W.2d 934 (1993). Held: motion is denied. Unlike the meetings in Kansas City Star Company, the Georgetown Town Council conducted public business when it held separate meetings to discuss and ratify the November, 1995 memorandum regarding personnel and other issues.

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96-IB05: FOIA-Town of Georgetown

Date Posted: Tuesday, February 13th, 1996

The Complainant alleged that the Georgetown Town Council violated the Freedom of Information Act. Complainant alleged that the Council met daily in violation of FOIA and also submitted a memorandum for which there was no public record. The Council argued that there was no specificity as to their daily meetings and argued that the Memorandum was reviewed with separate council members but at no time was a quorum present warranting a public meeting that complied with the Act. Held: there was no evidence that the Council met daily in violation of the Act. However, the Memorandum was executed in violation of the Act. A public body may be subject to FOIA even if a quorum is not present, as was the case here where small groups met to discuss the memorandum. The fact that Council met in sub-groups to discuss, formulate and execute the November 27, 1995 memorandum suggests that the Council acted deliberately to circumvent the public notice, agenda and record keeping requirements of the Act.

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96-IB02: Freedom of Information Act regarding Newark City Council

Date Posted: Tuesday, January 2nd, 1996

The Complainant requested an investigation into three meetings the Newark City Council held with the University of Delaware. These meetings were not open to the public and no record was kept. Newark City Council argued that no quorum was present at any of the meetings and, therefore, the meetings were not those of a public body. Held: ad hoc committees are considered public bodies and the breakdown of council members into three groups is the formation of ad hoc committees. The formation of three ad hoc committees to meet with the same university staff to discuss essentially the same topics was a scheme to avoid compliance with FOIA.

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96-IB03 RE: Freedom of Information Act Document Request 29 Del. C. § 10003

Date Posted: Tuesday, January 2nd, 1996

The Requestor sought information from the Delaware Supreme Court and Municipal Court of Wilmington regarding a 1995 vacancy. The original request was to the Governor and was denied. However, the request did reference the Courts and was, therefore, addressed by the Attorney General’s office. Held: the Courts are not public bodies created by the General Assembly under the Freedom of Information Act and any deliberations are specifically excluded from FOIA. Additionally, the request is denied because the judiciary has no input in the filling of judicial vacancies which are filled by the Governor with the advice and consent of the Senate.

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96-IB01: FOIA-Dewey Beach Town Council

Date Posted: Tuesday, January 2nd, 1996

The Complainant alleged that the Mayor of Dewey Beach improperly refused to respond to a question from a Maryland resident during a public town meeting. The Maryland resident also filed a Freedom of Information request. The town of Dewey Beach responded to the request but also noted that it need not fulfill FOIA requests made by non-Delawareans. Held: Delaware’s FOIA is applicable only to “citizens of the State,” meaning citizens of the State of Delaware.

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