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Attorney General's Opinions



  Category: 10001 Declaration of Policy

Attorney General Matt Denn


          

16-IB26 12/13/2016 FOIA Opinion Letter to Rep. Paul Baumbach, Rep. John Kowalko, Jr., Rep. Ed Osienski, Sen. Karen Peterson, Sen. David Sokola, and Sen. Bryan Townsend re: FOIA Complaint Concerning the University of Delaware Board of Trustees

Written on: December 13th, 2016 in 10001 Declaration of Policy

Petitioners alleged that the University of Delaware Board of Trustees (the “Board”) violated the open meetings provisions of FOIA by not adequately describing in the agenda for a May 17, 2016 meeting a bylaws change which the Board expected to discuss. HELD: The Board violated FOIA by failing to include proposed revisions to Article 3 of the University’s bylaws – a major issue expected to be discussed – in its agenda for its May 17, 2016 meeting. Because the Board has indicated an intent to reconsider the issue and ratify the vote at its December 13, 2016 meeting, the Department of Justice requests no further remediation. The Department of Justice nonetheless requests that the Board engage in meaningful public discussion on the matter prior to its December 13, 2016 vote.


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16-IB25 12/13/2016 FOIA Opinion Letter to Ms. Laura Nash and Ms. Jackie Hildebrand Kook re: FOIA Complaint Concerning the Christina School District Board of Education

Written on: December 13th, 2016 in 10001 Declaration of Policy

Petitioners alleged that the Christina School District Board of Education (the “Board”) had violated the open meetings provisions of FOIA by discussing items in executive session that are required to be publicly discussed. HELD: The Board violated FOIA by convening an executive session to discuss interview questions and next steps in the search process for the Christina School District Superintendent Position. To remediate this violation, the Department of Justice requests that the Board discuss the matters anew at its December 13, 2016 board meeting.discussed in executive session at the December 13, 2016 board meeting.


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16-IB24 11/17/2016 FOIA Opinion Letter to Mr. Michael Heyman re: FOIA Complaint Concerning the Newark Planning Commission

Written on: November 17th, 2016 in 10001 Declaration of Policy

Petitioner alleged that notice of a meeting of the Newark Planning Commission was insufficient based on its placement along a roadway. HELD: No FOIA violation was found. The Commission complied with the FOIA’s requirement of “conspicuous posting” at their primary place of business, which is also where the meeting was held. It also made multiple notices of the meeting available through online and print means.


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16-IB23 10/28/2016 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Pathways to Prosperity Steering Committee

Written on: October 28th, 2016 in 10001 Declaration of Policy

Petitioner alleged that a meeting of the Pathways to Prosperity Committee met without providing public notice. HELD: The Committee acknowledged that it had violated FOIA by failing to provide public notice of its first meeting. As no action was taken at the meeting, minutes were made publicly available, and the Committee expressed that its oversight would not be repeated, this office found no additional remediation was warranted.


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16-IB22 10/24/2016 FOIA Opinion Letter to Mr. Peter Kostyshyn re: FOIA Complaint Concerning the State Elections Commissioner

Written on: October 24th, 2016 in 10001 Declaration of Policy

Petitioner requested campaign finance reports from the Office of the State Elections Commissioner (the “SEC”), which directed Petitioner to a website for the information. Petitioner alleged that this constituted a denial of records because he has no access to a computer. The SEC, after learning the Petitioner had no access to a computer, offered Petitioner printed records for a fee. HELD: No FOIA violation is found. A public body is permitted to charge fees in advance for printing or copying records, and the fees the SEC proposes for printed copies of the requested documents appear to be consistent with the statute.


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16-IB21 10/19/2016 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning Gateway Lab Charter School

Written on: October 19th, 2016 in 10001 Declaration of Policy

Petitioner requested a determination of whether Gateway Lab Charter School’s Board of Directors had violated FOIA by voting in executive session. HELD: Evidence demonstrated that there was an error in the minutes, which were subsequently revised, and that the vote took place during the public session. Thus, the Board did not violate FOIA by voting in executive session. However, the Board did violate FOIA by failing to maintain minutes that accurately reflected the votes taken and actions agreed upon at the April 4th meeting.


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16-IB20 9/30/2016 FOIA Opinion Letter to Mr. Russell Carollo re: FOIA Complaint Concerning the Office of the State Bank Commissioner

Written on: September 30th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the Office of the State Bank Commissioner (OSBC) violated FOIA by denying his request because he is not a citizen of Delaware. HELD: FOIA permits but does not require public bodies to fulfill FOIA requests from citizens of other states.


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16-IB19 9/30/2016 FOIA Opinion Letter to Mr. Nicolas Krawitz re: the Hon. Chipman Flowers’ FOIA Complaint Concerning the Office of the State Treasurer

Written on: September 30th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the Office of the State Treasurer had violated FOIA in the following ways: inflating estimates of legal review and printing charges for his initial request; improperly including photocopying charges in its estimate; failing to provide an estimate of administrative fees for the February 5 request ; asking Petitioner to perform an initial review of the records for exemptions; circumscribing access based on the belief that Petitioner had certain requested records already; and employing “obstinate tactics”. HELD: OST violated FOIA by including a charge for legal review in their estimated administrative fees. They are asked to remedy this violation by providing Petitioner with a revised itemized written estimate. ALSO HELD: Because the parties had an ongoing and unresolved discussion of the parameters of the request until shortly before the petition was filed, the failure to provide an estimate of administrative fees did not violate FOIA under the circumstances. ALSO HELD: OST offered Petitioner the opportunity to perform an initial review of records, but did not demand that he do so. This did not constitute a FOIA violation. ALSO HELD: OST did not circumscribe or deny Petitioner access to records based on a belief that he has a copy of some or all of the requested records. ALSO HELD: The record demonstrates that the FOIA Coordinator did not fail to fulfill his FOIA obligations.


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16-IB18 9/28/2016 FOIA Opinion Letter to Ms. Donna Means re: FOIA Complaint Concerning Newark City Council

Written on: September 29th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the Newark City Council violated FOIA by denying her the opportunity to participate in public comment; removing her from the meeting without justification; and the passing of notes between the Mayor and other individuals. HELD: FOIA does not require an opportunity for public comment, but when offered, this office has determined that such opportunities must comport with the First Amendment. In this instance, the Council’s actions and rule against “personal affronts” survived First Amendment scrutiny in the “limited public forum.” ALSO HELD: The passing of notes among the Mayor and her staff did not violate FOIA because those individuals were not Councilmembers, and the allegation that notes were previously passed to Council members in other meetings was too vague to warrant consideration.


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16-IB17 7/28/2016 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning the Delaware State Board of Education

Written on: July 28th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the State Board of Education violated FOIA on February 18, 2016 meeting by not providing adequate space for the public to observe their meeting. Petitioner further alleged that individual board members consulting with counsel during a break at the same meeting was a violation of FOIA. HELD: The Board violated FOIA by not providing adequate space and not attempting to accommodate the members of the public who were unable to view the proceedings due to space limitations. Because there is no evidence of a quorum of members speaking with counsel, FOIA was not violated by individual conversations.


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