Does a Delaware zoning board violate FOIA if it doesn't forward a citizen's written comments to the final decision-making body?

Official title

17-IB46 9/7/2017 FOIA Opinion Letter to Mr. Mike Kwiecien re: FOIA Complaint concerning Sussex County Planning & Zoning Commission and the Sussex County Council

Plain-English summary

Mike Kwiecien, who had separately petitioned the AG about notice for an earlier zoning matter (Del. Op. Att'y Gen. 17-IB42), complained again, this time alleging that the Sussex County Planning & Zoning Commission failed to forward documents he had submitted in opposition to a conditional use ordinance amendment to the Sussex County Council before the Council's final vote on August 29, 2017. He argued this was unfair given elected officials' obligations of integrity and fairness.

Accepting his factual account as true, the AG still found no basis for a FOIA violation and closed the matter. The opinion explained that FOIA's petition process is limited to determining whether a FOIA violation occurred, not whether conduct was fair or complied with the state's Code of Conduct for public officials, the Commission's own rules of procedure, or Sussex County Code. Any complaint along those lines would have to be pursued through a different channel, not a FOIA petition.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Is a zoning commission required by FOIA to pass along a citizen's submitted comments to the final decision-maker?

Not according to this opinion. The AG found nothing tying that kind of internal information-sharing between a commission and a county council to a FOIA violation, even taking the requester's allegation at face value.

If it's not a FOIA issue, where else could a fairness complaint about a zoning process go?

The opinion pointed to other possible avenues outside FOIA's scope, including Delaware's Code of Conduct for state employees, officers, and officials, the Commission's own rules of procedure, and Sussex County Code, without expressing any view on whether those would apply.

Why did the AG accept the requester's facts but still rule against him?

Because FOIA's petition process, under 29 Del. C. § 10005(e), only asks whether a FOIA violation occurred or is about to occur. Even assuming everything the requester said was true, none of it described the kind of open-meetings or records-access failure FOIA covers.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, gives the AG's office a petition process under § 10005(e) to determine whether a public body has violated FOIA. That process is confined to FOIA violations; it does not reach broader complaints about fairness, ethics, or compliance with a public body's own procedural rules, even when a petitioner frames those complaints in terms of open government values.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition process limited to determining FOIA violations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/09/07/17-ib46-972017-foia-opinion-letter-mr-mike-kwiecien-re-foia-complaint-concerning-sussex-county-planning-zoning-commission-sussex-county-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/09/Attorney-General-Opinion-No.-17-IB46.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB46

September 7, 2017

VIA U.S. MAIL & EMAIL

Mike Kwiecien

34820 Rickards Rd.
Frankford, DE 19945
[email protected]

RE: September 2, 2017 Correspondence Regarding the Sussex County Planning
& Zoning Commission

Dear Mr. Kwiecien:

We write regarding your correspondence, received on September 2, 2017, alleging that the
Sussex County Planning & Zoning Commission (the "Commission") violated Delaware's
Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA").

In your correspondence, you state that you submitted documents to the Commission,
which we understand to have been in opposition to an application to amend a conditional use
ordinance, to be made a part of the "public record." You then allege that Commission failed to
share those documents with the Sussex County Council (the "Council") prior to the Council's final
consideration of the matter at its August 29, 2017 meeting.

Accepting all of your factual allegations as true, we can find no basis to conclude that the
Commission's actions amounted to a FOIA violation. As such, this matter is now closed.[1]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Aaron R. Goldstein
State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email)
J. Everett Moore, Jr., Esq. (via email)

[1] We note that you state that you contacted this Office "because elected officials are
governed by a set of guidelines and integrity and fairness must be at the forefront." You also allege
that the Council "clearly presented" your opponents' materials with the Council prior to the August
29, 2017 hearing. Under the circumstances, we believe it important to note that the petition process
outlined in 29 Del. C. § 10005(e) is limited to a determination of whether a violation of FOIA has
occurred or is about to occur. While we have determined that the Commission's conduct did not
amount to a FOIA violation, we offer no opinion regarding whether the Commission's conduct
comports with the Delaware State Employees', Officers' and Officials' Code of Conduct, the
Commission's Rules of Procedures, Sussex County Code, or any other provision of law. Indeed,
any such determination would fall outside the scope of FOIA.