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Attorney General Kathy Jennings

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  Archived Posts From: 2010


10-IB17 12/15/10 FOIA Opinion Letter to Mr. Cahill re: FOIA Complaint Against Town of Smyrna

Written on: December 15th, 2010 in 10002(g) Meeting10004(c) Requirements to Meet in Executive Session10004(e)(2) Notice Requirements for Regular Meetings10004(f) Minutes Requirements

Complainant assert that Town violated FOIA by not having public meetings of committee charged with selecting police chief, by not releasing applications for police chief position, and by the Town council having email discussions outside of public meeting relating to Town business. Town concedes that the subcommittee did not hold public meetings. Council concedes that members did exchange emails on Town business, but no vote was ever taken via email. HELD: Town violated FOIA by not having subcommittee hold public meetings concerning applications for selection of police chief. Town remedied the violation by holding public meeting. Town did not violate FOIA by not releasing applications. Those documents are confidential as records relating to job qualifications of applicants for public employment. Council emails did not violate FOIA because no votes were taken by email.

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10-IB15 11/17/10 FOIA Opinion Letter to Mr. Levine re: FOIA Complaint Concerning Delaware Interscholastic Athletic Association

Written on: November 17th, 2010 in 10001 Declaration of Policy

Complainant assert that Delaware Interscholastic Athletic Association (“DIAA”) violated FOIA open meetings requirements concerning the agenda for the November 11th meeting by posting the agenda with less than 24 hours notice, not providing a reason for the late posting, and failing to post the minutes of the meetings within one day after the meeting was held. HELD: DIAA did not violate FOIA. Agenda was timely posted. Reason for the late posting was sufficient, but non-descript. Best practice dictates a more detailed explanation for the short notice. Minutes must be posted before the next meeting. FOIA does not require the posting of minutes immediately following the meeting.

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10-IB14 RE: Freedom of Information Act Complaint Against University of Delaware

Written on: November 15th, 2010 in 10001 Declaration of Policy

Complainant asserts University violated FOIA open records requirements by refusing to provide him with copies of documents relating the wind turbine project on the University’s Lewes, DE campus. University asserts that these are not public documents because the project is not funded by public funds. HELD: University did not violate FOIA where documents requested were not public documents because no funds derived from the State or any political subdivision of the State were used for the project.

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10-IB13 RE: Appeal from Denial of Freedom of Information Act (FOIA) Records Request

Written on: October 8th, 2010 in 10002(l) (4) Exemptions - Criminal Files and Criminal Records

Complainant asserts that the DOJ violated FOIA open records requirements by not releasing an arrest file. The DOJ denied the request on the grounds that the information is either attorney work product or an investigative file. HELD: “Criminal Files”, which are distinct from “Criminal Records”, are confidential and not subject to release under FOIA.

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10-IB12: RE: Freedom of Information Act Complaint Against Sussex County Board of Adjustment

Written on: September 28th, 2010 in 10002(a) Agenda

Complainant asserts that County violated FOIA open meetings requirements by identifying roads under consideration on agenda by number instead of name and by sometimes moving away from microphones at meetings and out of the hearing of the public. HELD: County’s identification of roads by numbers on agenda does not violate FOIA. The agendas adequately draw the public’s attention to the fact that a specific important subject will be treated. There is no evidence that board members knowingly avoided public monitoring of meetings by moving away from the microphones at meetings.

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10-IB11 09/08/10 FOIA Opinion Letter to Ms. Wright re: FOIA Complaint Concerning Dewey Beach

Written on: September 8th, 2010 in 10001 Declaration of Policy10004(b)(4) Executive Session Collective Bargaining/Litigation10004(c) Requirements to Meet in Executive Session10004(f) Minutes Requirements

Complainant asserts Town violated FOIA open meeting requirements with respect to certain executive sessions regarding draft minutes, lack of video recording, lack of reason for executive session on agenda’s. HELD: FOIA does not require draft minutes or video recording. Town concedes that official minutes did not include reason for executive session and concedes that two agenda’s did not include reason for executive session. Town took remedial action by conducting properly noticed meetings and amending minutes.

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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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10-IB09 Re: Freedom of Information Act Appeal of Agency Denial of Records

Written on: September 2nd, 2010 in 10002(l) (1) Exemptions - Personnel

Complainant asserts that DelDot violated FOIA open records requirements when it redacted names/addresses from individuals who made public comments related to the US 113 North-South Study. DelDot argued the names/addresses were redacted for reasons of personal privacy. HELD: DelDOT must release the names/addresses. Delaware has not created a per se right to privacy in one’s name/address. There is no federal or Delaware statute that applies to names/addresses of individuals who voluntarily make comments to a public agency.

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10-IB08 08/24/10 Attorney General Opinion Letter to Chairman Lemire re: Applicability of the Manufactured Home Owners and Community Owners Act to The Villages of Noble’s Pond

Written on: August 24th, 2010 in 10001 Declaration of Policy

Issue is whether the Manufactured Home Owners and Community Owners Act (“Chapter 70”) applies to Nobles Pond in Dover. HELD: Yes. The definition of “manufactured home” in Chapter 70 deleted the previous language “and which is built on a permanent chasis.” Application of Chapter 70 turns on the presence or absence of land/lease arrangements not on technical definitions of housing standards.

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10-IB07 RE: Freedom of Information Act Complaint Against City of Wilmington

Written on: August 9th, 2010 in 10001 Declaration of Policy

Complainant asserts City violated FOIA by refusing to release documents related to collective bargaining between the City and one of its Unions and records relating to hiring of outside counsel. City asserts documents are exempt from release pursuant to 29 Del. C. Section 10002(g)(8) exempting document “involving labor negotiations or collective bargaining.” HELD: FOIA is co-extensive with the duty under Public Employment Relations Act (“PERA”) to provide information. The FOIA exemption excludes only records that could be excluded from the duty to provide information in collective bargaining. That is a question of labor law to be determined by PERB. However, the request for documents relating to hiring outside counsel should be produced. There is substantial public interest in how public bodies spend the public’s money.

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