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Attorney General's Opinions



  Category: 10001 Declaration of Policy

Attorney General Matt Denn


          

17-IB09 04/25/2017 FOIA Opinion Letter to Ms. Brooke Bovard re: FOIA Complaint Concerning Buzz Ware Village Center Committee

Written on: April 25th, 2017 in 10001 Declaration of Policy

Petitioner alleged that members of the Buzz Ware Village Center Committee violated FOIA by not publicly making the decision to deny her request for use of space. HELD: The Buzz Ware Village Center Committee is a public body. The record of email contact among a quorum of the Committee’s board members regarding the request and their decision establishes a serial meeting which was held without notice to the public, thus violating FOIA. Because the decision was ultimately reversed, this office does not recommend remediation, but does recommend that the Committee become more familiar with FOIA and pursue FOIA training.


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17-IB08 04/03/2017 FOIA Opinion Letter to Mr. Jea Street re: FOIA Complaint Concerning Red Clay Consolidated School District

Written on: April 3rd, 2017 in 10001 Declaration of Policy

Petitioner alleged that the Red Clay Consolidated School Board must have held a nonpublic meeting based on the Board President’s statement to a parent that the majority of the Board agreed with a decision of the principal of A.I. DuPont High School to cancel the remainder of the boys basketball season. HELD: Sworn affidavits demonstrate that the principal provided this information to the Board President, but no evidence was found of a quorum or constructive quorum of the Board meeting to discuss the matter. While no FOIA violation was found, the Board is nonetheless cautioned to avoid any representation that it discussed or decided public business if it had not.


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17-IB07 03/28/2017 FOIA Opinion Letter to Mr. Paul J. Reiger, Sr. re: FOIA Complaint Concerning Sussex County Board of Adjustment

Written on: March 28th, 2017 in 10001 Declaration of Policy

Petitioner alleged that the Sussex County Board of Adjustment violated FOIA by not permitting him to comment at a meeting that included public comment in the agenda. The Board contended that agenda item was added only to permit a county employee to speak about his retirement. HELD: All members of the public were treated equally during the public comment session, so the Board did not violate FOIA when it did not permit Mr. Reiger’s comment. The Board did violate FOIA by including public comment on the agenda when they did not intend to allow it. No remediation is warranted, though the Board was encouraged to pursue FOIA training.


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17-IB06 03/21/2017 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Department of Safety and Homeland Security and the Delaware State Police

Written on: March 21st, 2017 in 10001 Declaration of Policy

Petitioner alleged that the Delaware State Police violated FOIA by improperly redacting purchase orders. HELD: Consistent with this office’s March 4, 2016 opinion regarding the same records, we request that DSP review the redactions and either provide Petitioner copies without the redactions of that information or provide the bases for such redactions. Petitioner also alleged that the scope of DSP’s search for requested records was insufficient. HELD: Consistent with this office’s March 4, 2016 opinion, no FOIA violation has been found.


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17-IB05 03/10/2017 FOIA Opinion Letter to Mr. Karl Baker re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Written on: March 10th, 2017 in 10001 Declaration of Policy

Petitioner alleged that the Department of Natural Resources and Environmental Control (DNREC) denied his request for emails to and from the Officer of the Governor and DNREC Secretary and Assistant Secretary referencing a possible violation of a DNREC Secretary order. HELD: Because the records sought relate to an investigation, the records are exempt from FOIA’s definition of “public record.” As such, DNREC did not violate FOIA by denying the Petitioner’s request.


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17-IB04 03/08/2017 FOIA Opinion Letter to Ms. Patricia McCune re: FOIA Complaint Concerning Town of Middletown

Written on: March 8th, 2017 in 10001 Declaration of Policy

Petitioner alleged that the Town of Middletown violated FOIA by not answering questions regarding the source of certain funds paid out by the Town and by not providing certain records relating to a 2002 real estate transaction. HELD: FOIA does not require a public body to respond to questions. Moreover, the Town performed an adequate search of its own records and there is no evidence to suggest that an existing third party has possession of responsive records over which the Town has control. The Town therefore did not violate FOIA as alleged.


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17-IB03 02/15/2017 FOIA Opinion Letter to Mr. James Dawson re: FOIA Complaint Concerning Delaware Technical & Community College

Written on: February 15th, 2017 in 10001 Declaration of Policy

Petitioner alleged that Delaware Technical & Community College violated FOIA by not basing the estimate of the cost to fulfill his request on the pay rate of the lowest-paid employees capable of performing the work. HELD: There was no FOIA violation. The College provided evidence through a sworn affidavit that the employees whose pay rates were used to develop the estimate are the lowest-paid ones capable of doing the necessary work within their information security protocols.


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17-IB01 02/03/2017 FOIA Opinion Letter to Mr. Randall Chase and Ms. Jessica Reyes re: FOIA Complaint Concerning The City of Dover

Written on: February 8th, 2017 in 10001 Declaration of Policy

Petitioners alleged that the City of Dover’s denial of their request for a copy of a settlement agreement entered into by the City violated FOIA. HELD: The City has constructive possession of or administrative control over the settlement agreement and the confidentiality agreement does not bar disclosure. We conclude that the City violated FOIA by denying the Requests and request its insurer to provide Petitioners with the Release and Settlement Agreement within fifteen business days of this determination.


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17-IB02 02/08/2017 FOIA Opinion Letter to Mr. John Wells re: FOIA Complaint Concerning the Red Clay Consolidated School District

Written on: February 8th, 2017 in 10001 Declaration of Policy

Petitioner alleged on five occasions that Red Clay Consolidated School District violated FOIA by failing to respond to his requests records in a time and manner as prescribed by FOIA. HELD: We find that the District violated FOIA repeatedly, as alleged in each of the Petitions, by failing to respond to Petitioner’s requests in the manner and time prescribed by FOIA. The only exception to this finding is with respect to his request for 2016-2017 choice records, which were not available when requested. No specific remediation is recommended because the Petitioner did receive the records after the deadlines had passed. However, the District is encouraged to consult the statute and other materials available on FOIA compliance.


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16-IB27 12/22/2016 FOIA Opinion Letter to Mr. Frank Cannon re: FOIA Complaint Concerning City of Seaford

Written on: December 22nd, 2016 in 10001 Declaration of Policy

In May 2016, Petitioner alleged that the City had not given timely notice of their April 4, 2016 meeting. HELD: The City violated FOIA by providing five days’ public notice instead of the required seven.

In June 2016, the Petitioner alleged that the City’s Electric Committee failed to provide public notice of their May 16, 2016 meeting and the Economic Development Committee failed to post notice of their March 22, 2016 meeting. HELD: These committees are public bodies and these meetings were each attended by a quorum of members. Thus the City violated FOIA by not noticing these meetings. However, the City has agreed that future activities of these bodies will comply with FOIA.

In July 2016, Petitioner alleged that the City held meetings closed to the public between May 17, 2016 and June 14, 2016 in order to finalize and balance the fiscal year 2017 budget. HELD: There is insufficient evidence to support the allegation. No FOIA violation was found.

In November 2016, Petitioner alleged that the Electric Committee failed to publicly post or publish the minutes of its August 3, 2016 meeting and that sometime in the summer of 2016, the Council held meetings closed to the public. HELD: The City Council and the Electric Committee are required only to make minutes available to the public for review, which they were several days later. There is insufficient evidence to support the second allegation. Thus no FOIA violation was found in regard to either allegation.


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