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  Category: 10002(l) (6) Exemptions – Records Exempted Per Statute or Common Law

Attorney General Matt Denn


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10001-declarations

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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10001-declarations

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

Petitioner 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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10001-declarations

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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10001-declarations

14-IB05 08/27/14 FOIA Opinion Letter to Mr. Wells re: FOIA Complaint Concerning the Department of Education

Written on: August 27th, 2014 in 10001 Declaration of Policy10002(l) (1) Exemptions - Personnel10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

The Complainant alleged the Delaware Department of Education (“DDOE”) provided an incomplete response to his request for documents. DDOE admitted it had withheld certain documents pursuant to applicable privacy statutes and regulations. Held: applicable State and federal statutes and regulations prohibit the release of records that could be identified to an individual student. Applying the standards set by the U.S. Department of Education, the requested documents are not “public records,” so DDOE cannot produce them.


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10001-declarations

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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10001-declarations

13-IB08 11/26/13 FOIA Opinion Letter to Mr. Chase re: ACLU-DE FOIA Complaint Against Delaware Department of Corrections

Written on: November 26th, 2013 in 10001 Declaration of Policy10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged the Department of Correction (“DOC”) violated the Freedom of information Act (“FOIA”) by failing to produce calibration and maintenance records of “Alco-Sensors.” DOC withheld the records on the basis of a statutory provision that DOC policies and procedures were not subject to disclosure except on written authority of the Commission. Held: the documents were not specifically excluded from the definition of “public records” and must therefore be produced.


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10001-declarations

13-IB06 11/20/13 FOIA (Informal) Opinion Letter to Mr. Chase re: FOIA Complaint Concerning New Castle County (911 Calls)

Written on: November 20th, 2013 in 10001 Declaration of Policy10002(l) (1) Exemptions - Personnel10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

The Complainant alleged New Castle County violated the “open records” provision of the Freedom of Information Act (“FOIA”) by refusing to release audio recordings of 911 calls made from the residence of Vice President Biden. Held: privacy interests under the U.S. Constitution and Delaware law outweighed whatever interest the public might have in disclosure of the recordings.


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10002l2-etradesecrets

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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10002l6-ercommomlaw

11-IB06 RE: Freedom of Information Act Complaint Against Brandywine School District

Written on: June 22nd, 2011 in 10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

Petitioners sought records of Brandywine School District related to two lawsuits against the District. District asserted that the settlement agreements were exempt from disclosure because they were filed under seal with the courts in question. Held that settlement agreements filed under seal, with court approval, are exempt from disclosure and are not public records under §10002(g)(6), because the District is not required to commit contempt of Court to provide the records.


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10002l6-ercommomlaw

10-IB10 RE: Freedom of Information Act Complaint Against Appoquinimink School District

Written on: September 8th, 2010 in 10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law

Complainant asserts that School District violated FOIA open records requirements by not providing copies of settlement agreement and related documents. School District asserts, among other things, that settlement and related school records are “educational records” that are confidential under both state and federal law. HELD: Family Educational and Privacy Act (“FERPA”) and FOIA provides that educational records may not be disclosed unless the parents consent. The District did not request the parents consent. If the parents do not consent, the documents should be submitted to the DOJ to determine whether they should be released or remain confidential.


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