Written on: February 20th, 1998 in 10001 Declaration of Policy
The City of Newark requested the DOJ to reconsider its opinion, dated Jan. 21, 1998 (98-IB01) when it found that the Newark Board of Ethics violated FOIA because it discussed public business in executive session for reasons not authorized by FOIA. HELD: Opinion modified; The deliberations and vote taken by the Board of Ethics did violate FOIA. The Board is required to deliberate on the matter in a public session based on the verbatim transcript created at the January meeting, but Board will not be required to engage in a full evidentiary hearing merely to take evidence or introduce documents already of record.
Written on: January 30th, 1998 in 10001 Declaration of Policy
Complainant alleged that the Town of Middletown violated FOIA by (i) failing to give notice to the public of meetings to discuss the development and eventual adoption of the Town’s Comprehensive Plan, even though those meetings did not involve a quorum of the council and involved the Mayor, members of the Institute staff, and the Town’s Planning Commission, and (ii) did not hold a public meeting to review comments on the Draft Comprehensive Plan from the Cabinet Committee on State Planning Issues. HELD: (i) failure to provide public notice of “workshops” to discuss Comprehensive plan violated FOIA because public business was discussed at those meetings and the groups involved constituted an “ad hoc” committee for purposes of FOIA; (ii) failure to post agendas with other meeting notices violated FOIA because public was not put on notice that their input was being sought regarding the proposed Comprehensive Plan; and (iii) to the extent complaint alleges violation of the Land Use Planning Act, that is outside the jurisdiction of the Office.
Written on: January 21st, 1998 in 10001 Declaration of Policy
Complainant alleged that the City of Newark violated FOIA because it did not provide her with a transcript of an executive session held by the City and did not go into executive session for a purpose authorized by statute. HELD: FOIA does not require a public body to tape record its meetings or executive sessions, or have a stenographer present to transcribe the proceedings. However, the City did discuss items in executive session for reasons not authorized by the statute. Therefore, the City directed to hold a new hearing in order to deliberate in public as required by FOIA.
Written on: December 23rd, 1997 in 10001 Declaration of Policy
Complainant alleged the Woodbridge School District violated FOIA by (i) maintaining vague and non-specific meeting minutes and that the meetings should be tape recorded; (ii) the school districted noticed an emergency meeting to discuss the assistant superintendent’s contract but in fact discussed other issues; and (iii) the district improperly met in executive session to discuss personnel matters, but actually discussed matters not authorized for executive session. HELD: (i) Complaints lodged more than six months after the action by the public body that is the subject of the complaint will not be considered; (ii) FOIA does not require a public body to tape record its meetings or executive sessions; and (iii) meeting minutes need only include a record of those members present and a record by individual members of each vote taken an action agreed upon. FOIA does not require a detailed summary of discussions.
Written on: November 24th, 1997 in 10001 Declaration of Policy
Complainant alleged that the City of Wilmington violated FOIA’s open meeting requirements by holding meetings of the Residency Review Board without notice to the public and by failing to maintain minutes of those meetings. The City did not dispute the allegation that it failed to provide notice of the meetings, but did provide copies of the minutes of those meetings. HELD: FOIA’s notice requirements apply to all meetings of public bodies regardless of whether formal action is taken by the body at the meeting. To remedy this violation, the Residency Review Board directed to notice a special meeting within thirty days of the date of the decision in order to discuss the principal matters discussed at its earlier meetings.
Written on: October 20th, 1997 in 10001 Declaration of Policy
Complainant alleged that the Milford City Council violated FOIA’s open meeting requirements because the agendas for those meetings did not indicate that the Council might go into executive session, and that the Council entered executive session for purposes not authorized by FOIA. The Council admitted that the executive sessions were not held in full compliance with FOIA. HELD: The Council did not post notice of its intention to go into Executive session, the reasons for the session, nor were minutes of the session maintained. Because of these actions, any action taken by the Council by those meetings deemed voidable. Council directed to re-notice the mattes that were the subject of discussion at those two meetings for another meeting open to the public.
Written on: September 2nd, 1997 in 10001 Declaration of Policy
Complainant alleged that the Town of Bridgeville violated FOIA’s open meetings requirements because it did not post a notice of a meeting at least 7 days prior to the meeting. Town replied that under the circumstances, only 24 hours notice was required. HELD: FOIA permits emergency meetings only when necessary for the immediate preservation of the public peace, health or safety. An employment dispute between a police officer and the Town does not rise to the level of an emergency necessary to obviate the notice requirements of FOIA. Thus, Town violated FOIA by failing to explain in the notice why seven days’ notice could not be given. No remedial action necessary though with respect to the personnel matters. The Town met to decide whether to ask the AG’s office to investigate the employee’s complaint and the AG’s office had already decided not to conduct the requested investigation. The meeting must be renoticed to allow the public to observe the Town’s discussion of all other public business.
Written on: July 29th, 1997 in 10001 Declaration of Policy
Complaint alleged that the Red Clay Consolidated School District Board of Education (“Red Clay”) violated the public records and open meeting requirements of FOIA because (i) Red Clay did not provide a copy of an amended contract with the Montessori School at a public meeting on June 2, 1997; (ii) Red Clay required the News Journal to make a written request to the District’s counsel before providing access to other public records requested on June 3, 1997; and (iii) Red clay withheld the minutes of the executive session meeting held on June 2, 1997. HELD: (i) Red Clay provided the contract within the time frames set by FOIA. No FOIA violation found simply because complainant felt the contract should have been provided at the meeting upon request, and prior to a vote—FOIA requires reasonable access, not instantaneous access; (ii) no violation of FOIA if a public body requires requests for records to be in writing; and (iii) where Red Clay went into executive session to discuss potential litigation over granting a school charter where the issue was covered heavily by the media and community residents threatened to sue the district if the charter were approved, Red Clay could reasonably conclude that open discussion with its attorneys of the legal issues surrounding the charter application would have an adverse affect on the Board’s position in potential litigation challenging the legality of the charter school. However, disclosure of the minutes would not defeat the lawful purposes of the executive session due to the minutes’ lack of specificity about the District’s litigation strategy.
Written on: April 10th, 1997 in 10001 Declaration of Policy
Complaint alleged that Sussex County violated FOIA by not providing him with a copy of the official complete billing submitted by Delmarva Paving to whomever it was sent for the paving of a road. The County responded that it did not have responsive records in its custody and control because the contractor at issue was a subcontractor, and the country received no bills directly from Delmarva. HELD: FOIA cannot be used to compel production of documents in the possession of a private contractor. A general contractor’s “private negotiations with its subcontractors” are not a proper subject of public scrutiny.
Written on: March 26th, 1997 in 10001 Declaration of Policy
Complainant alleged that the Colonial School District violated FOIA’s public records provisions when it failed to provide her records in the format she requested. HELD: (i) Public body not required to create records that do not exist or in the format requested by the Requesting Party and public body is not in violation of FOIA if they agree to provide access to those records for copying and inspection; and (ii) state laws readily available to the public are not deemed “public records” under FOIA.