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Attorney General's Opinions



  Category: 10002(l) (2) Exemptions – Trade Secrets

Attorney General Matt Denn


          

14-IB04 07/18/14 FOIA Opinion Letter to Mr. Myers re: FOIA Complaint Concerning the Department of Technology and Information

Written on: July 18th, 2014 in 10001 Declaration of Policy10002(l) (1) Exemptions - Personnel10002(l) (2) Exemptions - Trade Secrets10002(l) (3) Exemptions - Investigatory Files10002(l) (4) Exemptions - Criminal Files and Criminal Records10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the Department of Technology and Information (“DTI”) improperly withheld information regarding assessments for the Delaware Broadband Fund (the “Fund”). DTI withheld the assessments of three carriers at their request because the carriers alleged the assessments constituted “trade secrets” or “commercial financial information” that would constitute a threat to their respective competitive positions. Held: information withheld should have been produced. There was no apparent threat of competitive harm, given the voluntary release of assessment information to the Complainant by dozens of competitors.


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11-IB14 RE: Freedom of Information Act Appeal Concerning Department of Correction

Written on: August 30th, 2011 in 10002(l) (2) Exemptions - Trade Secrets10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

Requester sought all records of the Department of Corrections (DOC) relating to its purchases of certain chemicals for lethal injection. DOC refused, citing an exemption (1) for pending or potential litigation, (2) in the lethal injection law, (3) for a commercial need for confidentiality of the company that sold the chemicals to DOC, and (4) pursuant to a court order. Held that none of the alleged exemptions applied because (1) death penalty cases were nearly always in some form of pending litigation; (2) the lethal injection law didn’t include an express exemption; (3) DOC failed to overcome the burden favoring disclosure as to the alleged confidentiality needed by the vendor; and (4) the court order did not extend to the identity of the vendor of the drugs. As a result, the DOC was ordered to provide the requested documents.


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11-IB13 RE: Freedom of Information Act Complaint Against City of Dover

Written on: August 29th, 2011 in 10002(l) (2) Exemptions - Trade Secrets

Requester complained that City of Dover violated FOIA by redacting pricing information from the City’s contract for production of solar energy. The contractor alleged that the pricing information was protected confidential commercial or financial information. Held that because the pricing information sought was the bottom line contract price, it was not protected from disclosure. The City of Dover had five business days to provide an unredacted copy of the contract to the requester.


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08-IB12: RE: Freedom of Information Act Complaint Against Camden-Wyoming Sewer and Water Authority

Written on: September 19th, 2008 in 10001 Declaration of Policy10002(l) (2) Exemptions - Trade Secrets

Complainant alleged Camden-Wyoming Sewer and Water Authority (“CWSWA”) violated FOIA open records requirements by not providing a copy of a “Management Comment Letter from CWSWA’s auditors. CWSA asserts that the document is confidential as requested by the auditors. HELD: The letter would only be exempt from FOIA if it contained commercial or financial information that is privileged or confidential which it does not. A record that meets definition of public record is not entitled to exemption merely because the creator has designated it “confidential.” CWSA violated FOIA by not providing the letter.


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08-IB10 RE: Freedom of Information Act Complaint Against City of Rehoboth Beach

Written on: July 16th, 2008 in 10002(l) (2) Exemptions - Trade Secrets

Complainant alleged City violated FOIA open meeting requirements by not publicly noticing meetings relating to selection of engineering firm to reconstruct boardwalk, meeting was not open to public and minutes were not made available. City acknowledged it had meetings with engineering firms who submitted proposals and that meetings were not open to public. City asserted that these meetings were executive sessions to consider confidential/commercial information contained in the proposals. City did hold properly noticed public meetings to vote on final selection of engineering firm but no agenda provided notice or voting on executive session to consider the proposals. HELD: Proposals did contain confidential/commercial information which were properly considered in executive session. However, City violated FOIA by not noticing and voting on executive session. Remediation did not include invalidation of contract with engineering firm, but did require City to enter into consent agreement with Attorney General to require City to provide notice of any and all executive sessions to the DDOJ for one year.


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07-IB01 Re: Freedom of Information Act Complaint Against Town of Milton

Written on: January 25th, 2007 in 10002(a) Agenda10002(g) Meeting10002(l) (2) Exemptions - Trade Secrets

The Complainant, Senator Karen E. Peterson, asked whether the public record requirements of the Delaware Freedom of Information Act (“FOIA”), apply to the courts of the State of Delaware. Held: the General Assembly intended to exclude the judiciary from the application of FOIA. The language of FOIA demonstrates a legislative intent to respect the independence of the judiciary as a separate, co-equal branch of government and the judiciary’s right to control access to its records and proceedings by court rule.


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06-IB17 Re: Freedom of Information Act Complaint Against State Public Integrity Commission

Written on: August 21st, 2006 in 10002(l) (2) Exemptions - Trade Secrets

Complainant alleged that the State Public Integrity Commission violated FOIA by denying him access to lobbying expense reports and financial disclosure reports of public officials in electronic form. HELD: Under FOIA, a public body cannot respond to a request for information in electronic form by supplying paper records containing the same information. FOIA’s public records definition is broad, and an agency cannot withhold public records from disclosure simply b/c the records were created voluntarily, nor can it argue that disclosure is not required because no statute requires the creation/maintenance of the record. An existing electronic database is a public record separate and distinct from the underlying records used to compile the database. Additionally, records in the custody of private vendors but accessible by the public body are subject to disclosure under FOIA. However, FOIA does not require the creation of a record in a specialized format specified by the requesting party. FOIA does not require the public body to convert hard copies onto a CD either. FOIA only requires the public body to make the hard copy reports available to a requesting party for photocopying or scanning.


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06-IB14 Re: Freedom of Information Act Complaint Against Town of Middletown

Written on: July 12th, 2006 in 10002(l) (1) Exemptions - Personnel10002(l) (2) Exemptions - Trade Secrets

Del. Op. Atty. Gen. 06-IB14 (Del.A.G.), 2006 WL 2355968 Office of the Attorney General State of Delaware Opinion No. 06–IB14 July 12, 2006 Re: Freedom of Information Act Complaint Against Town of Middletown *1 Mr. Jeff Bruette 116 Sleepy Hollow Drive, Suite C Middletown, DE 19709 Dear Mr. Bruette: Our Office received your complaint dated […]


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05-IB10 Re: Freedom of Information Act Complaint Against New Castle County Council

Written on: April 11th, 2005 in 10002(l) (2) Exemptions - Trade Secrets

Complainant alleged the Council violated FOIA’s open meeting requirements by holding a special meeting without required notice (already addressed in 05-IB09) and by holding prior to that meeting a series of individual meetings with Council Members, with the expressed objective of garnering commitment for individual Council member votes, to remove the county auditor. Complainant did not provide the names of the individual Council members that allegedly met, or the date(s) or time(s) or places, or whether they allegedly met in person or electronically. The Council President in a sworn affidavit said he did not attempt to secure a consensus before the public meeting on the issue of the Auditor, and he was not solicited by a series of Council members for a particular vote prior to the public meeting. Held: Complainant failed to point to sufficient information to establish a prima facie showing that a meeting occurred, and no FOIA violation was found.


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03-IB21 Re: Freedom of Information Act Complaint Against New Castle County

Written on: October 6th, 2003 in 10002(l) (2) Exemptions - Trade Secrets10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged that New Castle County (“the County”) violated FOIA by not providing the names, addresses, and policy numbers of insurance carriers which underwrite public official coverage for the County. The County contended the requested information is exempt from disclosure under FOIA for two reasons: (1) “the [insurance] coverage information in the policy contains confidential information or financial details”; and (2) the information “falls within the pending or potential litigation exception.” Held: County did not violate the public records requirements of FOIA by refusing to provide documents that contain the names and addresses of insurers and the insurance policy numbers because the records containing such information fall within the potential litigation exception under FOIA.


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