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Attorney General's Opinions


Attorney General Matt Denn


          

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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16-IB10 5/9/2016 FOIA Opinion Letter to Ms. Crystal Smith re: FOIA Complaint Concerning the Town of Little Creek

Written on: May 9th, 2016 in 10001 Declaration of Policy10002(g) Meeting

Petitioner alleged that the Town of Little Creek violated FOIA by not publishing Town Council meeting minutes on their website and by requiring her to visit the private residence of a Town official to review public documents. Held: The Town is not required by FOIA to post meeting minutes online because that provision applies only to the executive branch of state government. The Town violated FOIA’s requirement of “reasonable access” by requiring a citizen to visit a private residence for public documents. No remediation is required because the Town has since provided the documents by mail.


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16-IB09 4/7/2016 FOIA Opinion Letter to Mr. Michael Dworiak re: FOIA Complaint Concerning the City of New Castle

Written on: April 7th, 2016 in 10001 Declaration of Policy

Petitioner alleged that the City of New Castle violated FOIA by assessing fees for legal review of the police procedures manual. Held: The charge did not violate FOIA because a review to determine whether disclosure of such information would present a safety risk to the police department or general public is considered to be an administrative rather than legal review. However, the City must ensure that the charge is based on the hourly rate of the lowest-paid individual capable of performing the work, provide an accounting to the Petitioner of the time spent on review, and refund any unspent balance of the prepaid charge.


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16-IB08 3/18/2016 FOIA Opinion Letter to Mr. John Papajohn re: FOIA Complaint Concerning the City of Rehoboth Beach

Written on: March 18th, 2016 in 10001 Declaration of Policy

Petitioner alleges that the City of Rehoboth Beach refused to explain the sources and methods utilized in arriving at its assessment figures, but was provided the requested records and does not allege otherwise. Held: The City is not required by FOIA to create records that do not exist. The methods by which properties were valued are outside the scope of FOIA.


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16-IB07 3/18/2016 FOIA Opinion Letter to Ms. Norma Derrickson re: FOIA Complaint Concerning the City of Rehoboth Beach

Written on: March 18th, 2016 in 10001 Declaration of Policy

Petitioner requested from the City of Rehoboth Beach “comparable sales for which fair market value was established” for certain properties for purposes of assessment. Held: The City violated FOIA when it failed to treat Petitioner’s request as a FOIA request and failed to respond within the timeframe required by FOIA. No remediation is required as Petitioner was later provided the opportunity to inspect responsive documents. The methods by which properties were valued are outside the scope of FOIA.


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16-IB06 3/14/2016 FOIA Opinion Letter to The Hon. Chip Flowers re: FOIA Complaint Concerning the Office of the Governor

Written on: March 14th, 2016 in 10001 Declaration of Policy

Petitioner appealed the withholding of certain requested emails that were determined by the Office of the Governor to be exempt from FOIA under Exemption 6 (privileged materials) and Exemption 16 (sent to or by a legislator or legislative staff). Held: Documents which are covered by common law privilege such as attorney-client privilege, executive privilege, and draft document privilege are exempt from FOIA. Documents may not be withheld pursuant to Exemption 16 solely on the basis that the sender or recipient is a member of the General Assembly or its staff and must therefore be examined to determine if the content or context indicates that they constitute communications with a constituent of the legislator or reflect the substance of such communications.


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16-IB05 3/11/2016 FOIA Opinion Letter to Rep. Kim Williams re: FOIA Complaint Concerning the Delaware State Board of Education

Written on: March 11th, 2016 in 10001 Declaration of Policy

Petitioner alleged that at the State Board of Education meeting held on January 21, 2016, the following constituted violations of FOIA: side conversations between a staff member and counsel and between the Board president and counsel, denial of a request by a member of the public to make public comment, and permitting a Board staff member to speak during Board discussion. Held: No FOIA violation was found regarding the side conversations because neither involved a quorum of board members. FOIA does not require public meetings to include public comment. FOIA does not prohibit Board staff from speaking during meetings.


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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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