Complainant alleged Sussex County violated FOIA by charging an unreasonable amount for copying records. Request was for electronic media download of current real property assessment date. County originally requested a flat fee of $12,000 then modified the charge to $3,000. County regulations allow $.30 per page for copies or “actual cost of reproduction” for records not subject to routine photocopying. County asserts that the information requested is made up of approximately 4 million records. HELD: County improperly equated each record with a copy. A record is not the same as a page. Electronic data cannot be charged on an arbitrary per record basis that has no relationship to the actual cost of reproduction.
Read MoreComplainant alleged Camden-Wyoming Sewer and Water Authority (“CWSWA”) violated FOIA open records requirements by not providing a copy of a “Management Comment Letter from CWSWA’s auditors. CWSA asserts that the document is confidential as requested by the auditors. HELD: The letter would only be exempt from FOIA if it contained commercial or financial information that is privileged or confidential which it does not. A record that meets definition of public record is not entitled to exemption merely because the creator has designated it “confidential.” CWSA violated FOIA by not providing the letter.
Read MoreComplainant alleged NCC violated FOIA open records requirements by not providing unredacted copy of email from private citizen to NCC Chief of Staff. Email copy was provided but name of private of citizen, an informant, was redacted. Complainant asserts NCC should reveal the identity of the informant to add details to the public debate. HELD: NCC not required to release name of informant. DOJ applies a balancing test weighing public’s interest in disclosure against public body’s interest in protecting sources. NCC’s interest in not discouraging citizens from reporting potentially illegal conduct is greater than the interest to release the identity of the informant.
Read MoreComplainant alleged City violated FOIA open meeting requirements by not publicly noticing meetings relating to selection of engineering firm to reconstruct boardwalk, meeting was not open to public and minutes were not made available. City acknowledged it had meetings with engineering firms who submitted proposals and that meetings were not open to public. City asserted that these meetings were executive sessions to consider confidential/commercial information contained in the proposals. City did hold properly noticed public meetings to vote on final selection of engineering firm but no agenda provided notice or voting on executive session to consider the proposals. HELD: Proposals did contain confidential/commercial information which were properly considered in executive session. However, City violated FOIA by not noticing and voting on executive session. Remediation did not include invalidation of contract with engineering firm, but did require City to enter into consent agreement with Attorney General to require City to provide notice of any and all executive sessions to the DDOJ for one year.
Read MoreComplainant alleged that Rehoboth Beach Planning Commission (“RBPC”) did not properly notice reconsideration of a partition application when it did not list the possibility of waiver of the municipal code provision to consider the application. Agenda reflected reconsideration of the partition application but did not list possibility of waiver. HELD: Major topic of discussion for the meeting was reconsideration of the partition application which was properly and timely posted in the agenda. Waiver was only the procedural mechanism by RBPC allowed application to proceed. It was not a separate and distinct topic which required a separate listing in agenda. FOIA does not require public body to detail in agenda every possible course of action it might take in discussing an agenda topic.
Read MoreComplainant alleged that City violated FOIA’s open meetings requirements when it adopted ordinance reducing number of members and term limits of Rehoboth Beach Planning Commission (“RBPC”) by not properly including those matters on agenda and discussed matter privately in serial emails with a quorum of City Commissioners. Agenda referred to RBPC as a “committee” and not “commission,” and did not list issue of term limits. HELD: Definition of “committee” and “commission” are not identical and possibility of confusion exists. Issue of term limits was also not properly noticed because it was neither on agenda nor did it arise at time of meeting. City violated FOIA by not clarifying that commissions and boards, as well as committees, would be discussed at meeting and not including term limits as a matter to be discussed. Emails complained of do not constitute closed meeting of a quorum in violation of FOIA. Emails did not stimulate discussion or any action by City Commissioners in advance of public meeting. No remediation necessary because departures from FOIA did not rise to level of egregiousness to warrant the very serious sanction of invalidating votes.
Read MoreComplainant alleges that Town violated FOIA regarding the Middletown Action Network (“MAN”) and amendments to town charter. Among other things, Complainant alleges that (i) the Mayor improperly appointed two additional MAN members’ (ii) Middletown held non-public MAN meetings; and (iii) an amendment of the Middletown charter was formulated without public notice and the amendment was not mentioned in Mayor’s oral remarks at the public meeting. Town acknowledged that MAN was created by ordinance on October 1, 2007 and held two or three meetings after its creation, but prior to the approval of their bylaws, but that Mayor did not appoint two additional members. Therefore, MAN meetings were not subject to FOIA. Town further acknowledged that charter amendment removed a $4 million debt limit and that amendment was properly and timely notice for a public meeting. HELD: Mayor not required to hold public meeting to take executive action even if he chose to add members to MAN. The MAN meetings were held in violation of FOIA. MAN became a public body when ordinance creating it was passed. However, FOIA violations are those of MAN, not the Town. With respect to Mayor’s comments about charter amendment at public meeting, FOIA does not concern itself with content of public meeting unless the meeting fails to conform to proposed agenda. Accordingly, Mayor’s oral remarks are not a FOIA issue.
Read MoreComplainant 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.
Read MoreComplainants 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).
Read MoreComplainant 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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