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Attorney General Matt Denn


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10002a-definitions

00-IB12: Re: Freedom of Information Act Complaints Against Woodbridge School District

Written on: June 28th, 2000 in 10002(a) Agenda

This opinion concerns three separate claims of Freedom of Information Act (“FOIA”) violations brought by Complainant against Woodbridge School District, arising out of board and committee meetings leading to an ultimately unsuccessful referendum. Held: FOIA does not require that public bodies holding public meetings permit members of the public to speak at such public meetings. In addition, and based on case law from the Delaware Court of Chancery, technical violations of FOIA – such as notice language indicating that the board will “reconsider” an issue when it is technically just “considering” the issue for the first time – are not sufficient to support either declaratory or injunctive relief against the public body. While there were certain technical violations of FOIA made by the district, none rose to a level sufficient to warrant remedial measures. The district was warned to be more careful in the future.


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00-IB08: Re: Freedom of Information Act Complaint Against University of Delaware

Written on: May 24th, 2000 in 10002(h) Public Body

The Complainant alleged that the University of Delaware had violated the Freedom of Information Act (“FOIA”) by failing to answer a series of questions he had posed to the University in writing, and by meeting in executive session to approve a land transfer without public notice. Held: FOIA does not require public bodies to answer written questions. Further, FOIA does not include records in the custody of the University in its definition of “public records” unless such records “relat[e] to the expenditure of public funds.” FOIA further exempts the University from its open meeting requirements other than for meetings of the “full Board of Trustees.” Accordingly, the executive session held by a committee of the Board of Trustees was not subject to FOIA’s open meeting requirements, and the University’s agreement to provide any documents related to the expenditure of state funds negated any claim of violation with respect to access to public records.


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10001-declarations

00-IB07 Re: Freedom of Information Act Complaints Against Woodbridge School District

Written on: April 28th, 2000 in 10001 Declaration of Policy

The Complainants alleged that the Woodbridge School District had violated the Freedom of Information Act (“FOIA”) in a number of ways while considering how to respond to a failed referendum. Held: (1) A three-member committee of the district’s school board was a “public body” within the meaning of FOIA and it violated FOIA by failing to provide adequate notice of its intention to meet and the subject of its planned meeting, and the district’s defense that it was not required to give notice because no “formal action” was taken at the meeting was rejected; (2) the district’s last-minute change to an agenda for a meeting on March 21, 2000 to include consideration of a potential second referendum violated the seven-day notice requirements of FOIA and did not arise during the course of the meeting; (3) even though no complaint was filed, the Attorney General concluded that a separate FOIA violation occurred in connection with the agenda for a later, April 17, 2000 meeting of the district board; and (4) the district’s response to the complaint, which included the setting of a new meeting to consider the relevant issues and providing adequate notice, complied with the requirements of FOIA. Given the newly-scheduled and adequately-noticed upcoming special meeting, no additional remedies were deemed required at that time.


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00-IB05: FOIA Complaint Against Red Clay Consolidated School District

Written on: February 18th, 2000 in 10001 Declaration of Policy

The Complainant alleged that the Red Clay Consolidated School District had violated the Freedom of Information Act (“FOIA”) at a meeting in November 1998, and again by failing to provide executive session minutes for a December 16, 1998 executive session. The district responded by arguing that the complaint was time-barred and, in any event, it had provided the Complainant with a copy of the executive session minutes in question. Held: The request for executive session meeting minutes was moot. As for the complaint about the November 1998 meeting, FOIA requires a citizen to complain about a violation of its terms within 60 days of it learning of such action, and in no event later than 6 months after the action. In light of the fact that more than six months had passed since the meeting in question, no further action was taken on the complaint.


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00-IB03: FOIA Complaints Against Brandywine School District

Written on: February 2nd, 2000 in 10001 Declaration of Policy

The Complainant alleged that the Brandywine School District had violated the Freedom of Information Act (“FOIA”) by (i) charging him for access to public records; and (ii) failing to provide him with communications from the Delaware Department of Justice office to the district pertaining to an audit investigation of the district being performed by the Delaware Department of Justice. The district responded by agreeing not to charge the Complainant for the response, and by claiming that any communications responsive to his request were not in its custody. Held: The district may have violated FOIA by charging for access to public records when it did not have a formal policy in place requiring it to do so. Any such violation was remedied by the district’s agreement not to charge the access fee. As for the communications requested, the district was not the custodian of the records that were being sought, and it was therefore under no obligation under FOIA to produce the documents in question.


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00-IB02: FOIA Complaint Against Town of Bellefonte

Written on: January 10th, 2000 in 10001 Declaration of Policy

The Complainant alleged that the Town of Bellefonte had violated the Freedom of Information Act (“FOIA”) by not providing him with access to “all the town records past and current” at a time that was convenient to the Complainant. The town responded that it had arranged for all of the records in its possession to be available for inspection (with a photocopier available on location) at an open meeting, and that it had separately proposed thirty different hours in January 1998 when the Complainant could come in and review the available records. Held: The town’s response was reasonable and not a violation of FOIA. The town had made the records in its possession available on a number of occasions and at varying times. The town should not be “liable for [Complainant’s] failure or refusal to avail [himself] of any of those times.”


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99-IB17: FOIA Complaint Against Town of Townsend

Written on: December 22nd, 1999 in 10001 Declaration of Policy

The Complainant alleged that the Town of Townsend violated the Freedom of Information Act in reviewing and approving a measure to mandate trash collection. Held: Upon review of the notice and agenda, the town complied with the notice requirements of FOIA in discussing and, ultimately, approving a set of mandatory trash collection procedures. No FOIA violation had occurred.


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99-IB16: FOIA Complaint Against Del. Dept. of Transportation and City of Wilmington

Written on: December 17th, 1999 in 10001 Declaration of Policy

The Complainant alleged that the Delaware Department of Transportation and the City of Wilmington had violated the Freedom of Information Act (“FOIA”). Held: FOIA does not permit the Attorney General to adjudicate any FOIA dispute between a citizen and a department that the Attorney General is obliged to represent, such as the Delaware Department of Transportation. In any event, the Complainant had not identified any meetings that were held in violation of FOIA or public records that were not provided to him upon request. Instead, the complaint focused on allegations of other statutory violations by the City of Wilmington, which were beyond the scope of the Attorney General’s FOIA jurisdiction. No relief was therefore warranted.


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99-IB15 Re: Freedom of Information Act Complaint Against City of Newark

Written on: December 9th, 1999 in 10002(h) Public Body

The Complainant alleged that the City of Newark violated the Freedom of Information Act by holding a meeting to discuss public business that was not open to the public. The City responded that the meeting in question was not a meeting of a council committee or other public body, but included representatives of the City, the State of Delaware and other state agencies to discuss a letter of award with the consulting firm that had been the winning bidder for a city contract. Held: The meeting was not one of a “public body” and it was therefore not required to be open. It included representatives across a number of state agencies, and largely consisted of City employees, not members of the City council. No FOIA violation had occurred.


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99-IB14 RE: Freedom of Information Act Complaint Against Town of Elsmere

Written on: November 5th, 1999 in 10002(l) (3) Exemptions - Investigatory Files

The Complainant alleged that the Town of Elsmere had violated the Freedom of Information Act (“FOIA”) by refusing to permit him to review documents in a police complaint file regarding an unregistered motor vehicle parked in Complainant’s driveway. The Town argued that the “investigative file” exception to FOIA exempted the documents from disclosure. Held: Relying on case law in the Court of Chancery, the opinion held that the “investigative file” exception to FOIA applies even after a file is closed, and especially with respect to cases where no criminal charges are filed. The records requested were therefore not “public records” within the meaning of FOIA, and no violation occurred.


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