Written on: December 29th, 2015 in 10001 Declaration of Policy, 10002(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.
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.
Written on: December 17th, 2015 in 10001 Declaration of Policy, 10002(a) Agenda, 10004(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.
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.
Written on: December 1st, 2015 in 10002(a) Agenda, 10002(l) (1) Exemptions - Personnel, 10004(b)(1) Executive Session Job Qualifications, 10004(b)(9) Executive Session Personnel Matters, 10004(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.
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.
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).
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 […]
Written on: August 19th, 2015 in 10001 Declaration of Policy, 10004(c) Requirements to Meet in Executive Session, 10004(f) Minutes Requirements
The petitioners made 8 allegations of Freedom of Information Act (“FOIA”) violations by the Town of Dewey Beach (“the Town”) including holding discussion of a potential property purchase by email, holding a special meeting inconsistent with regular meeting day and time, posting insufficient or inaccurate agendas for two meetings, failing to meet the 15 business day deadline to provide requested records, and by failing to keep minutes of executive sessions. Held: The emails regarding property purchase did not constitute a “serial meeting” because there was not a quorum of commissioners participating. Meeting notices, agendas, and use of executive sessions complied with FOIA. A properly noticed meeting does not violate FOIA by being held at a different day and time than usual. The Town missed the 15 day deadline to provide requested records and failed to create minutes of the meeting of January 2, 2015 in a timely manner.
The petitioner requested a determination of whether the Cape Henlopen Senior Center (“CHSC”) is a “public body” subject to the Freedom of Information Act (“FOIA”). Held: CHSC is not a public body because it is not a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State” and it was not established by governmental act or entity as described in FOIA. The mere fact that CHSC receives a large portion of its funding from the State and Sussex County is not sufficient to subject it to FOIA because it does fall within the first statutory requirement.