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Attorney General Kathy Jennings


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10001-declarations

02-IB34: FOIA Complaint Against the Town of South Bethany

Written on: December 21st, 2002 in 10001 Declaration of Policy

The Complainant alleged that the Town of South Bethany (“the Town”) violated FOIA by failing to provide public record access to your requests for public records. Held: the town’s resolution dated July 27, 2001 is hereby declared unenforceable. The town is directed to adopt a public document access policy consistent with FOIA, this opinion and the various published rulings of this office as reflected in the FOIA Manual published by this office no later than February 28, 2003.


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10002l9-epotentiallitigation

02-IB32 Re: Freedom of Information Act Complaint Against New Castle County

Written on: December 20th, 2002 in 10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying his request for “copies of letters sent by the law firm of Kirkland & Ellis to the News Journal regarding Sherry Freeberry’s Statement of Financial Interest.” The County claims these records are exempt from disclosure under FOIA because “[t]hese letters related directly to potential litigation and were prepared by the County Attorney’s designee.” Held: the County has failed to meet its burden of proof to justify withholding these records from the public. The purpose of FOIA’s potential litigation exemption is to prevent a party from using FOIA in lieu of the discovery rules to obtain information outside the judicial process. For the exemption to apply, the public body that is the custodian of the records must show objective criteria that litigation is likely, and a sufficient nexus between the records and the subject matter of any potential litigation. See Att’y Gen. Op. 02-IB30 (Dec. 2, 2002).


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10001-declarations

02-IB31: FOIA Complaint Against Sussex County Council

Written on: December 6th, 2002 in 10001 Declaration of Policy

The Complainant alleged that Sussex County (“the County”) violated FOIA by: (1) discussing matters of public business at a meeting on October 1, 2002 without proper notice to the public; and (2) charging an unreasonable fee ($10.00) for a copy of the County’s comprehensive land use plan. Held: (1) the agenda item sufficiently alerted the public that the Council would be discussing proposed changes to the comprehensive land use plan: and (2) $10.00 is a reasonable amount to charge for copying under FOIA. See Att’y Gen. Op. 94-IO13 (Mar. 15, 1994) (fifty cents per page reasonable).


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10002l9-epotentiallitigation

02-IB30 RE: Freedom of Information Act Complaint Against New Castle County

Written on: December 2nd, 2002 in 10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged that New Castle County (“the County”) violated FOIA by denying your request for “a copy of all documents which were prepared for, relied upon, or handed out to participants and/or any County employees at the special meeting held by the County Executive on Thursday, July 11, 2002 at 4 p.m. in the Executive Conference Room at the County Government Center.” By letter dated August 6, 2002, the County denied your request. Held: the County did not violate FOIA by withholding the personal notes prepared by Mr. Baker for the July 11, 2002 meeting because they are not “public records” as defined by FOIA. We determine that the County violated FOIA by not providing you with access to the remaining documents you requested because the County has failed to meet its burden of proof that those documents are within the potential litigation or other exemption under FOIA.


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10001-declarations

02-IB27: FOIA Complaint Against Sussex County Council

Written on: November 4th, 2002 in 10001 Declaration of Policy

The Complainant alleged that Sussex County (“the County”) violated FOIA by meeting in executive session on September 10, 2002 and then not providing you with a copy of the minutes of that executive session. Held: the Council did not violate FOIA when it met in executive session on September 10, 2002 for the authorized purpose of discussing preliminary site acquisition, and that the Council did not violate the open records requirements of FOIA by withholding the minutes of that executive session at this time.


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10001-declarations

02-IB26: FOIA Complaint Against City of New Castle

Written on: October 28th, 2002 in 10001 Declaration of Policy

The Complainant alleged that the City of New Castle (“the City”) violated FOIA by meeting on October 1, 2002 to discuss public business without notice to the public. Held: the City’s offer to remediate this FOIA violation by publicly noticing a meeting of the Council for October 28, 2002 is sufficient.


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10002l-epersonnel

02-IB24 Re: Freedom of Information Act Complaint Against New Castle County

Written on: October 1st, 2002 in 10002(l) (1) Exemptions - Personnel10002(l) (6) Exemptions - Records Exempted Per Statute or Common Law10002(l) (9) Exemptions - Pending or Potential Litigation

The Complainant alleged that New Castle County (“the County”) violated FOIA by not providing you with copies of any checks payable to Sharon Hughes, former legislative aide to New Castle Councilman J. Christopher Roberts, or her attorney, Richard J. Wier, Jr., Esquire, relating to the legal settlement of a personnel matter between the County and Ms. Hughes. Held: any nondisclosure provision in a settlement agreement between Ms. Hughes and the County cannot override the public records requirements of FOIA and that the County violated FOIA by not providing you with access to documents relating to the settlement of a legal claim between Ms. Hughes and the County.


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10001-declarations

02-IB23: FOIA Complaint Against Sussex County Planning & Zoning Commission

Written on: October 1st, 2002 in 10001 Declaration of Policy

The Complainant alleged that Sussex County Planning and Zoning Commission (“the Commission”) violated FOIA by not providing you with “copies of the revised draft [Comprehensive Plan Update]” in violation of the public record requirements of FOIA. You also allege that the Commission violated the public notice requirements of Title 9 of the Delaware Code in connection with special meetings of the Commission on September 11 and 19, 2002. Held: the Commission made these public records reasonably accessible to citizens as required by FOIA. The Commission noticed each of its meetings on August 29, September 9, and September 11, 2002 at least seven days in advance as required by FOIA.


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10001-declarations

02-IB23: FOIA Complaint Against Sussex County Planning & Zoning Commission

Written on: October 1st, 2002 in 10001 Declaration of Policy

The Complainant alleged that Sussex County Planning and Zoning Commission (“the Commission”) violated FOIA by not providing you with “copies of the revised draft [Comprehensive Plan Update]” in violation of the public record requirements of FOIA. You also allege that the Commission violated the public notice requirements of Title 9 of the Delaware Code in connection with special meetings of the Commission on September 11 and 19, 2002. Held: the Commission made these public records reasonably accessible to citizens as required by FOIA. The Commission noticed each of its meetings on August 29, September 9, and September 11, 2002 at least seven days in advance as required by FOIA.


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10001-declarations

02-IB22: FOIA Complaints Against New Castle County and New Castle County Council

Written on: September 13th, 2002 in 10001 Declaration of Policy

The Complainant alleged that: (1) the New Castle County Executive and the County Council met on July 11, 2002 without adequate notice to the public, and that they discussed matters of public business not specified in the notice; and (2) that the Executive Committee of the County Council met on July 16, 2002 without timely notice to the public, and in that meeting discussed matters beyond those listed in the agenda. Held: the County Executive and the Council did not violate the open meeting requirements of FOIA with respect to the July 11, 2002 joint meeting, and that the Council’s Executive Committee did not violate the open meeting requirements of FOIA with respect to its July 16, 2002 meeting.


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