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Attorney General's Opinions


Attorney General Matt Denn


          

16-IB09 4/7/2016 FOIA Opinion Letter to Mr. Michael Dworiak re: FOIA Complaint Concerning the City of New Castle

Written on: April 7th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the City of New Castle violated FOIA by assessing fees for legal review of the police procedures manual. Held: The charge did not violate FOIA because a review to determine whether disclosure of such information would present a safety risk to the police department or general public is considered to be an administrative rather than legal review. However, the City must ensure that the charge is based on the hourly rate of the lowest-paid individual capable of performing the work, provide an accounting to the Petitioner of the time spent on review, and refund any unspent balance of the prepaid charge.


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16-IB08 3/18/2016 FOIA Opinion Letter to Mr. John Papajohn re: FOIA Complaint Concerning the City of Rehoboth Beach

Written on: March 18th, 2016 in 10001 Declaration of Policy

Petitioner alleges that the City of Rehoboth Beach refused to explain the sources and methods utilized in arriving at its assessment figures, but was provided the requested records and does not allege otherwise. Held: The City is not required by FOIA to create records that do not exist. The methods by which properties were valued are outside the scope of FOIA.


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16-IB07 3/18/2016 FOIA Opinion Letter to Ms. Norma Derrickson re: FOIA Complaint Concerning the City of Rehoboth Beach

Written on: March 18th, 2016 in 10001 Declaration of Policy

Petitioner requested from the City of Rehoboth Beach “comparable sales for which fair market value was established” for certain properties for purposes of assessment. Held: The City violated FOIA when it failed to treat Petitioner’s request as a FOIA request and failed to respond within the timeframe required by FOIA. No remediation is required as Petitioner was later provided the opportunity to inspect responsive documents. The methods by which properties were valued are outside the scope of FOIA.


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16-IB06 3/14/2016 FOIA Opinion Letter to The Hon. Chip Flowers re: FOIA Complaint Concerning the Office of the Governor

Written on: March 14th, 2016 in 10001 Declaration of Policy

Petitioner appealed the withholding of certain requested emails that were determined by the Office of the Governor to be exempt from FOIA under Exemption 6 (privileged materials) and Exemption 16 (sent to or by a legislator or legislative staff). Held: Documents which are covered by common law privilege such as attorney-client privilege, executive privilege, and draft document privilege are exempt from FOIA. Documents may not be withheld pursuant to Exemption 16 solely on the basis that the sender or recipient is a member of the General Assembly or its staff and must therefore be examined to determine if the content or context indicates that they constitute communications with a constituent of the legislator or reflect the substance of such communications.


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16-IB05 3/11/2016 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning the Delaware State Board of Education

Written on: March 11th, 2016 in 10001 Declaration of Policy

Petitioner alleged that at the State Board of Education meeting held on January 21, 2016, the following constituted violations of FOIA: side conversations between a staff member and counsel and between the Board president and counsel, denial of a request by a member of the public to make public comment, and permitting a Board staff member to speak during Board discussion. Held: No FOIA violation was found regarding the side conversations because neither involved a quorum of board members. FOIA does not require public meetings to include public comment. FOIA does not prohibit Board staff from speaking during meetings.


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16-IB04 3/10/2016 FOIA Opinion Letter to Ms. Kaitlyn Collyer re: FOIA Complaint Concerning the Delaware Department of Finance

Written on: March 10th, 2016 in 10001 Declaration of Policy10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

The Department of Finance denied Petitioner’s request for the applications of several companies for exemption from corporate income tax. Held: There was no FOIA violation. Such applications are considered a “report or return” required by 30 Del. C. § 368, which prohibits the disclosure of the information contained in such reports or returns. FOIA exempts from disclosure those records that are deemed confidential by other statute(s).


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16-IB03 3/4/2016 FOIA Opinion Letter to Mr. Ryan Tack-Hooper of ACLU of Delaware re: FOIA Complaint Concerning Delaware State Police

Written on: March 4th, 2016 in 10001 Declaration of Policy

Petitioners appealed the redactions of a document that was produced pursuant to Attorney General Opinion 15-IB14 as improper under FOIA. Held: The State Police are directed to review the redactions to determine whether an error was made. The State Police should thereafter promptly provide to Petitioner either (i) a new copy of the documents without the redactions, if it is determined that they were erroneous, or (ii) the basis for the redactions, if it is determined that the redactions were intentional.


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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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