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Attorney General's Opinions


Attorney General Matt Denn


          

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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16-IB16 7/6/2016 FOIA Opinion Letter to Mr. Frank Cannon re: FOIA Complaint Concerning City of Seaford

Written on: July 6th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the City Council had violated FOIA by omitting certain portions of his public comments in the summary provided in the minutes and thus rendering the minutes inaccurate. HELD: The minutes are not materially misleading and thus there is no FOIA violation. The summary of comments in the minutes contain sufficient information to convey the Petitioner’s subject, objections, and conclusion while other portions of the minutes reflect discussion of the Policies that the Petitioner commented on and a record of the vote.


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16-IB15 6/10/2016 FOIA Opinion Letter to Mr. David Grimaldi re: FOIA Complaint Concerning New Castle County

Written on: June 10th, 2016 in 10001 Declaration of Policy

Petitioner alleged that he requested and did not receive documents from New Castle County. Held: The County violated FOIA by failing to a) cite a reason why additional time was needed to fulfill the request and b) provide the petitioner with a good-faith estimate of how much additional time it required. Remediation is not required because the documents are related to pending litigation and are therefore exempt from FOIA.


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16-IB14 6/9/2016 FOIA Opinion Letter to Mr. Vincent White re: FOIA Complaint Concerning Wilmington Housing Authority

Written on: June 9th, 2016 in 10001 Declaration of Policy

Petitioner alleged that various actions by Wilmington Housing Authority were FOIA violations. Held: 5 allegations were no longer timely. A sixth allegation, that a special meeting was held without a vote to do so, was determined to not be a FOIA violation because there is no requirement that a public body vote to hold a meeting. Two other allegations cannot be examined without descriptions of specific actions, which the petitioner may submit for a future determination.


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16-IB13 6/8/2016 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council

Written on: June 8th, 2016 in 10001 Declaration of Policy

Petitioner alleged that Sussex County Council violated open meetings laws by announcing an extra paid holiday (2014) and employee bonus (2015) that had not been publicly discussed and voted on and did so at an annual county employee luncheon which was not publicly noticed. Held: The decision to offer these was made by the County Administrator rather than the Council. As the County Administrator is a body of one, the open meetings laws do not apply to them. An employee social event is not considered a public meeting under FOIA.


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16-IB12 6/8/2016 FOIA Opinion Letter to Mr. Nick Patton of the Delaware Riverkeeper Network re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Written on: June 8th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the Department of Natural Resources and Environmental Control (“DNREC”) did not respond to their request for documents within the time required by FOIA. Held: DNREC violated FOIA by failing to respond within 15 business days. However, no remediation is required because the documents requested were exempt due to litigation.


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16-IB11 6/6/2016 FOIA Opinion Letter to Mr. David Carter re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Written on: June 6th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the Department of Natural Resources and Environmental Control improperly denied requested documents. Held: There is no common law exemption for “settlement negotiations” to justify withholding documents on such a basis. Documents withheld due to potential litigation or attorney-client privilege were appropriately considered exempt. Those documents withheld as “working drafts” would require further analysis. Because most documents withheld as “working drafts” were also withheld as related to potential litigation or attorney-client privilege, we request that only those not so exempted receive additional review. If, consistent with this opinion’s guidance, such records are determined to not be exempt, those records should be provided to Mr. Carter’s organization.


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