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.
Complaint alleged that the City of Lewes violated FOIA’s open meeting requirements by not providing the required notice of meetings where public business was discussed. HELD: The public body violated FOIA by (i) failing to post agenda for meetings of the Personnel Policy Review Committee; and (ii) failing to maintain minutes of those meetings. Additionally, a joint meeting between members of the City Council and the Chamber of Commerce to discuss public business constituted a “meeting” for purposes of FOIA, even though no formal action was taken by the body. However, neither the Chamber of Commerce nor the City was required to provide notice of the meeting because the bodies were not a “public body” for purposes of FOIA because the Mayor and Council members in attendance were only there for informational purposes and did not actively participate in discussions of public business that were later the subject of formal action by the City Council at one of its own meetings. Since the meetings were recorded, City ordered to create minutes of the Committee meetings to date as remediation, and to prepare minutes for all future meetings. The Committee also ordered to notice a special meeting to discuss any formal report or recommendation made by the Committee since its inception, and to give proper notice of that meeting to the public so that interested citizens can attend and comment.
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.
Written on: March 17th, 1997 in 10001 Declaration of Policy
Complainant alleged that the Appoquinimink School District violated the open records requirements of FOIA by not allowing reasonable access to public records. HELD: Computer generated records are “public records” for purposes of FOIA and are not exempt for disclosure. Any hard-copy documents which form the basis of the reports are also disclosable public records. Even though producing public records may be burdensome, it is not a valid reason, under FOIA, for not producing all the public records requested.
Written on: March 4th, 1997 in 10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law, 10002(l) (9) Exemptions - Pending or Potential Litigation
Complainant alleged that the Town of Laurel denied his request to inspect and copy public records HELD: The Town did not violate the public records provisions of FOIA because the Town made available to complainant for inspection and copying most of the public records requested, and the documents it did not disclose are specifically exempted under FOIA because they related to pending litigation and the attorney client privilege (letters to counsel relating to a bankruptcy proceeding, letters to attorneys related to outstanding amounts due for water, sewer, trash, and real estate taxes, and a letter from counsel to a client relating to bankruptcy proceedings and sale of properties for tax delinquencies), and the common law right of privacy (parking tickets).
Written on: February 27th, 1997 in 10001 Declaration of Policy
Complainant alleged that the Woodbridge School District Board of Education violated FOIA in connection with the hiring of Personnel for the 1996-1997 school year because the Superintendent attempted to obtain a consensus vote for the new hires rather than have a discussion an election at a Board meeting open to the public. HELD: The Assistant Superintendent’s phone calls to individual Board members amounted to a consensus vote on the recommendations and therefore constituted a violation of FOIA. No remedial action required since the subject matter of the consensus vote was properly noticed for the next meeting and was properly voted on at that time.
Written on: February 12th, 1997 in 10001 Declaration of Policy
Complainant requested an opinion as to whether a meeting between DelDot officials and “local elected officials,” scheduled with less than 7-days notice, would constitute a violation of FOIA. Held: No violation of FOIA if the City issues a notice at least 24 hours in advance of the meeting pursuant to the “special meetings” section of FOIA, and the notice indicates why an earlier notice was not possible. In this case, sufficient to state that an earlier notice was not possible because legal opinions had not been obtained from the City Solicitor and the Attorney General prior to the posting of the notice.
Written on: January 14th, 1997 in 10001 Declaration of Policy
Complainant alleged that the Town of Laurel (i) violated the open records requirements of FOIA by not producing documents responsive to his records request; and (ii) violated the open meetings requirement of FOIA because it did not comply with the town’s subdivision regulations; and (iii) another meeting notice and agenda, posted at the Town’s Planning Commission office, violated FOIA because it did not provide the time and place of the meeting. Held: (i) A signed affidavit from the custodian of records stating that there are no responsive records to the request is sufficient for purposes of FOIA; (ii) The Town’s notice requirements are separate and distinct from FOIA; (iii) the Planning Commission meeting’s posted notice and agenda violated FOIA because it did not provide the time and place of the meeting and was posted with five days, rather than seven day’s notice. No remediation required because this was a technical rather than substantive violation.
Written on: December 11th, 1996 in 10001 Declaration of Policy
Requestor sought an opinion on whether the names and addresses of Delaware business license holders constitute public records under the Freedom of Information Act. Held: as a general rule, the names and addresses of the holders of business licenses are exempt from disclosure by a common law right of privacy. In certain situations, the balance between a private right of informational privacy may be outweighed by the public interest in disclosure, but only if disclosure will contribute significantly to public understanding of the operations or activities of government, as opposed to the commercial interest of the requestor. However, it is difficult to conceive of a situation in which the reason for requesting the names and addresses of business license holders would be for any purpose other than the commercial interest of the requestor.