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10001-declarations

98-IB01A: FOIA Complaint, City of Newark, Supplemental

Written on: February 20th, 1998 in 10001 Declaration of Policy

Civil Division-New Castle County           February 20, 1998

AG Opinion: IB01a-98
Supplemental

Roger A. Akin, Esquire
City Solicitor
220 Elkton Road
Newark, DE 19711

Re: City of Newark FOIA

Dear Roger:

By your letter of February 19, 1998, The City of Newark has asked
whether the Department of Justice will reconsider its opinion
dated January 21, 1998 when it found that the Newark Board of
Ethics had violated the Freedom of Information Act (“FOIA”). We
found that the Board violated the restrictions governing the type
of business which can be conducted during an executive session.
As a result, we concluded that the Board would be required to
conduct a new hearing on the complaint. You have indicated that
the Board is meeting on February 20, 1998 to determine how to
proceed as a result of the finding contained in our opinion of
January 21, 1998.

After failing to reach either Ms. Or Mr. Tarrant on the 19th, I
was able to talk with both of them this morning. I faxed a copy
of your letter to Mr. Tarrant at his office this morning. Mr. and
Ms. Tarrant objected to any reconsideration of the opinion on two
grounds: first that the City has instituted new procedures which
allow for subpoenas which was not the case at the time of the
original hearing and second that to merely require that the Board
deliberate again would not be a sufficient sanction to act as
deterrent toward future FOIA violations by the city.

While I understand your desire to have the Board meet
expeditiously to resolve this issue consistent with our decision,
the Department of Justice is concerned that both parties have a
full opportunity to be heard. Since you have told me that you
want to advise the Board on the 20th in anticipation of a
proceeding to be noticed for a later date, I will consider your
request under 29 Del. C. § 10005 as one to determine whether a
FOIA violation will occur. By copy of this letter to Ms. Tarrant,
we will consider any submission she would make prior to the date
set by the Board for its reconsideration so long as it brings to
our attention relevant information which is germane to the FOIA
issue as opposed to the merits of the case or non-FOIA issues
relating to the Board’s procedures.

As discussed in the opinion of January 21st, the only FOIA
violation which occurred related to the improper use of the
executive session for purposes of deliberation. As pointed out in
your letter, the remedial action should be tailored to meet the
violation. While we recognize that remedial action may create a
burden, the city should not be required to repeat any process
which did not give rise to a FOIA violation. Since there is a
verbatim transcript of the hearing and since the Board which will
reconsider the case will be comprised of the same persons who
originally heard the complaint, we will modify our opinion of
January 21, 1998 in the following manner:

The deliberations and vote taken by the Board of Ethics were in
violation of 29 Del. C.  §10004(b)(4). The Board shall reconvene
in order to conduct deliberations based on the verbatim
transcript of the hearing provided that the members of the Board
meeting in the reconvening session are identical to the members
who originally heard the complaint on June 19, 1997. The
deliberations shall be conducted on the record in open session
consistent with the findings set forth in our opinion dated
January 21, 1998. It shall not be necessary to hold a full
evidentiary hearing merely to take evidence or introduce
documents already of record. On the other hand, the Board is free
to expand the proceeding for purposes which it deems proper and
appropriate so long as the proceeding otherwise complies with
FOIA requirements.

In all other respects, we restate and reaffirm all of the
findings and conclusions set forth in our opinion of January 21,
1998 which are not inconsistent with this letter.

Very truly yours,

Michael J. Rich
State Solicitor

cc: The Honorable M. Jane Brady
Keith R. Brady, Chief Deputy Attorney General
Ms. Shirley Tarrant
H. Alfred Tarrant, Jr., Esquire
Ms. Chrystyna Lafferty





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