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Attorney General's Opinions


Attorney General Matt Denn


          

16-IB02 1/14/2016 FOIA Opinion Letter to Mr. Michael Dworiak re: FOIA Complaint Concerning Bethany Beach

Written on: January 14th, 2016 in 10001 Declaration of Policy10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

Mr. Dworiak requested from the Town “copies of Bethany Beach Police Department’s policies and procedures related to internal affairs investigations, discipline and code of standards or conduct and the completed internal affairs investigations statistical summaries for the years 2011 through 2014.” The Town produced the policies and procedures, but denied the request for the internal affairs investigations statistical summaries, claiming to provide such summaries would be out of compliance with the Law Enforcement Officers’ Bill of Rights (LEOBOR) due to the police force’s small size. Held: There is no FOIA violation. Town policy that would otherwise make such records available to the public is subordinate to the state LEOBOR statute, which protects records of internal affairs investigations from disclosure.


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16-IB01 1/7/2016 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council

Written on: January 7th, 2016 in 10004(b)(1) Executive Session Job Qualifications10004(b)(9) Executive Session Personnel Matters10004(e)(2) Notice Requirements for Regular Meetings

Petitioner raised several questions: (1) whether the County Administrator presented the new pay grades and job descriptions to Council for approval;(2) why discussion of pay grades and job descriptions was conducted in executive session; (3) why pay grades and job descriptions were not discussed in public at the May 12, 2015 Council meeting when they had been discussed at the March 30, 2015 Board meeting; (4) whether Council could vote on pay grades and job descriptions at the June 16, 2015 meeting when they were not specifically listed in the budget; (5) whether the executive session minutes for the May 5, 2015 and May 12, 2015 Council meeting were public documents under FOIA;[5] and (6) whether the March 30, 2015 Board meeting was properly noticed. Held: No FOIA violations occurred.


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15-IB14 12/29/2015 FOIA Opinion Letter to Mr. Jonathan Rudenberg re: FOIA Complaint Concerning the Delaware Department of Safety and Homeland Security, Division of State Police

Written on: December 29th, 2015 in 10001 Declaration of Policy10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

Petitioner requested certain records regarding the use of cell site simulators. State Police agreed to provide responsive records except for a nondisclosure agreement with the FBI. Held: the Agreement between the State Police and the FBI is a public record subject to disclosure under Delaware’s FOIA and should be provided within 10 calendar days of the date of this determination.


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15-IB13 12/29/2015 FOIA Opinion Letter to Ms. Melissa Steele re: FOIA Complaint Concerning the Delaware Division of Forensic Science

Written on: December 29th, 2015 in 10002(l) (3) Exemptions - Investigatory Files

Petitioner alleged that the Delaware Division of Forensic Science violated FOIA by not providing a decedent’s manner of death. Held: The Medical Examiner’s investigation and determination are part of DDFS’ investigative files and are not public records for purposes of FOIA.


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15-IB12 12/17/2015 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Delaware Department of Education

Written on: December 17th, 2015 in 10001 Declaration of Policy10002(a) Agenda10004(e)(2) Notice Requirements for Regular Meetings

Petitioner alleged two public records and two open meetings violations by the Department of Education (DOE). Held: As long as a public body searches internal records first, it does not violate FOIA for a public body to request that the Department of Technology and Information perform a second search for email records. But when the body has already found no responsive records in its own search, it should so advise the petitioner. Further held: There is no evidence that the State Board of Education withheld information it would have shared with the public in the petitioner’s absence. Further held: The September 17 and September 23 Academic Framework Working Group meeting notices and agendas did not comply with FOIA because they were posted less than seven days in advance of the meetings.


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15-IB11 12/11/2015 FOIA Opinion Letter to Mr. Stephen Norman re: FOIA Complaint Concerning Brandywine School Board

Written on: December 11th, 2015 in 10002(g) Meeting10004(b)(7) Executive Session Student Discipline

The petitioner alleged that the Brandywine School Board (the “Board”) violated FOIA by not making a public decision on whether to expunge a student’s record. Held: The Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA. The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. The Board is directed to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.


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15-IB10 12/1/2015 FOIA Opinion Letter to Mr. John Young re: FOIA Complaints Concerning the Christina School Board

Written on: December 1st, 2015 in 10002(a) Agenda10002(l) (1) Exemptions - Personnel10004(b)(1) Executive Session Job Qualifications10004(b)(9) Executive Session Personnel Matters10004(c) Requirements to Meet in Executive Session

The petitioner alleged that the Christina School District (“CSB”) violated FOIA by discussing the superintendent’s competency and abilities in executive session; by holding a vote in executive session; and by not making public a copy of the superintendent contract more than 6 hours before meeting to vote on it. Held: The CSB did not violate FOIA when it discussed the district superintendent’s competency and abilities in executive session at the August 2015 board meeting. The CSB did violate FOIA when it held a vote in executive session at the August meeting. However, we find that the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded. Therefore, no remediation is required. Finally, we conclude that the CSB did not violate FOIA’s meeting notice requirements when it circulated a copy of the superintendent’s contract less than six hours prior to the September 2015 board meeting.


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15-IB09 Attorney General Advisory Opinion on Payments to Landowners for Removal or Disposal of Manufactured Homes Abandoned Prior to a Change in Use Application

Written on: November 4th, 2015 in Manufactured Housing

The Delaware Manufactured Home Relocation Authority (“DEMHRA”) requested advice on (i) whether 25 Del. C. § 7014(a) requires DEMHRA to grant abandoned home benefits to an applying landowner when “the home in question has been abandoned before the landowner announced its intent to engage in a change of use in the park”; and (ii) whether the landowner’s continued payment of DEMHRA assessments between the time of a homeowner’s abandonment and the landowner’s announcement of a change in use has any effect on that landowner’s right to collect benefits. Based on our review of the Act, the factual scenario outlined by DEMHRA’s letter and applicable law, we believe that the provisions of the Act that permit DEMHRA to provide financial assistance to landowners for the removal or disposal of an abandoned manufactured home are limited to situations in which the manufactured home in question was abandoned as a result of a “change in use” plan being filed by the landowner. To make the contrary determination would, in our view, expand the limited scope of the Act into a general assistance program designed to help landlords of manufactured home communities with assistance in removing and/or disposing of abandoned manufactured homes. We believe that if the General Assembly had intended to create such a program – the efficacy or desirability of which we take no position on – it would have done so in clear and explicit language. Absent such a legislative change, it is our advice that DEMHRA lacks the authority to provide financial assistance to the landowner in the factual scenario described by your letter.


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15-IB08 FOIA Opinion Letter to Mr. John Wells re: FOIA Complaint Concerning the New Castle Data Service Center

Written on: November 3rd, 2015 in 10002(h) Public Body

The petitioner requested a determination that the Data Service Center (“DSC”) is a public body obligated to produce public records in their custody. Held: The DSC is a “public body” within the meaning of 29 Del. C. § 10002(h). The DSC is also a custodian of the records requested by Mr. Wells. The DSC should work with the various school districts to promptly produce all public records in accordance with the terms of the statute. This determination should not be interpreted to mean that the DSC is required to create records or reports that do not exist, or produce records subject to an exemption to FOIA under 29 Del. C. §10002(l).


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15-IB07 08/27/15 Attorney General Opinion re: Required Disclosure of Identity of Political Party Funding Campaign Advertisements

Written on: August 27th, 2015 in 10001 Declaration of Policy

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE Attorney General Opinion No. 15-IB07 August 27, 2015 The Honorable Elaine Manlove State Election Commissioner 905 S. Governors Ave Ste 170 Dover, Delaware 19904 RE:    Required Disclosure of Identity of Political Party Funding Campaign Advertisements Dear Commissioner Manlove:      You have asked whether the […]


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