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: August 28th, 1997 in 10002(a) Agenda
Complainant alleged that the Council of the City of New Castle violated FOIA’s open meeting requirements by holding a meeting of the Public Safety Review Committee without providing adequate notice to the public. HELD: The committee violated FOIA’s open meetings laws when it (i) failed to provide 7 days notice of its meetings; and (ii) the notices posted failed to include meeting agendas. No remediation required, however, since these were technical violations of FOIA.
Written on: August 22nd, 1997 in 10002(h) Public Body
Del. Op. Atty. Gen. 97-IB15 (Del.A.G.), 1997 WL 606474 Office of the Attorney General State of Delaware Opinion No. 97–IB15 August 22, 1997 RE: Freedom of Information Act Complaint Against Caesar Rodney School District *1 Mr. David Burke 66 West Fairfield Drive Dover, DE 19910 Dear Mr. Burke: By letter dated June 30, 1997 (received […]
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).