Complainant alleged that the Camden-Wyoming Sewer & Water Authority violated the public record requirements of FOIA when it failed to provide the “total amount of monies expended in the research, filing and pursuit” of litigation failed by the Authority against the Town of Camden. The Authority responded by providing a copy of the stipulated settlement agreement and order. The authority’s attorney also responded by noting that she did not separately bill the authority for time spent on the lawsuit and that no separate record of billing for the matter existed. HELD: The Authority did not violate FOIA because it did not have in its custody an accounting of the costs of legal counsel in the litigation, and FOIA does not require the Authority to prepare such an accounting.
Read MoreComplainant alleged that the Camden-Wyoming Sewer & Water Authority violated the public record requirements of FOIA when it failed to provide the “total amount of monies expended in the research, filing and pursuit” of litigation failed by the Authority against the Town of Camden. The Authority responded by providing a copy of the stipulated settlement agreement and order. The authority’s attorney also responded by noting that she did not separately bill the authority for time spent on the lawsuit and that no separate record of billing for the matter existed. HELD: The Authority did not violate FOIA because it did not have in its custody an accounting of the costs of legal counsel in the litigation, and FOIA does not require the Authority to prepare such an accounting.
Read MoreComplainant alleged that the Sussex County Council violated the open meeting requirements of FOIA by meeting in executive session for purposes not authorized by FOIA. HELD: (i) Council violated FOIA when it met in executive session to discuss which of two consulting firms to hire because independent contractors are not prospective employees for purposes of FOIA. Therefore the “job applicant” exemption does not apply. (ii) Council did not violate FOIA when it met in executive session to discuss prospective candidates for the positions of Director of Accounting and Budget Manager. The “job applicant” exemption applied to this discussion. Additionally, the exemption for executive session does not turn on whether the public body or another person had the authority to hire for the positions because the purpose of the exemption is to protect the individual privacy of the prospective public employee. No remediation required for first FOIA violation because the public was substantially involved in the process by which the Council awarded the contract to one of the two consultants.
Read MoreComplainant alleged that the Wilmington Housing Authority violated the public records requirements of FOIA by failing to disclose “all reports, studies and documents” pertaining to an apartment building fire. The Authority declined the request, stating that the records were exempt from disclosure due to the pending or potential litigation exemption. HELD: Potential or pending litigation exemption not applicable because there was no evidence in the record to suggest that complainant or The News Journal was attempting to use FOIA to obtain information as a prelude to a lawsuit against the Authority.
Read MoreComplainant alleged that the Christina School District Board of Education violated the open meeting requirements of FOIA by meeting twice in private at an open meeting to discuss matters of public business without notice to the public. HELD: The facts show that, collectively, five Board members participated in the two meetings with the Superintendent to discuss reductions in force and tax warrants. This amounted to a constructive quorum for purposes of FOIA because the meetings were scheduled only a few hours apart, the subjects discussed were the same, and the School Board acknowledges the meetings went beyond the mere passive receipt of information.
Read MoreComplainant alleged that the Town of Smyrna violated the open meeting requirements of FOIA by (i) not providing timely notice to the public of a special meeting of the Town; and (ii) not disclosing in the agenda for the meeting that the Council would discuss appointing a Vice Mayor. HELD: (i) the notice of the public meeting violated FOIA by failing to explain why a special meeting was required without providing 7 days notice; and (ii) the agenda violated FOIA b/c it did not indicate that the Town would be discussing the appointment of a Vice Mayor at the special meeting.
Read MoreComplainant alleged that the New Castle County Council Economic Development Subcommittee violated the open meeting requirements of the FOIA by denying her the opportunity to speak at a public meeting. HELD: FOIA does not require a public body to permit public comments. The subcommittee never opened up the meeting for public comment, nor did it discriminate as between individual members of the public based on their viewpoint.
Read MoreComplainant alleged that the State Public Integrity Commission violated FOIA by denying him access to lobbying expense reports and financial disclosure reports of public officials in electronic form. HELD: Under FOIA, a public body cannot respond to a request for information in electronic form by supplying paper records containing the same information. FOIA’s public records definition is broad, and an agency cannot withhold public records from disclosure simply b/c the records were created voluntarily, nor can it argue that disclosure is not required because no statute requires the creation/maintenance of the record. An existing electronic database is a public record separate and distinct from the underlying records used to compile the database. Additionally, records in the custody of private vendors but accessible by the public body are subject to disclosure under FOIA. However, FOIA does not require the creation of a record in a specialized format specified by the requesting party. FOIA does not require the public body to convert hard copies onto a CD either. FOIA only requires the public body to make the hard copy reports available to a requesting party for photocopying or scanning.
Read MoreComplainant 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.
Read MoreComplainant 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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