Can a Delaware town committee hold private meetings to pick a new police chief and keep the applications secret?

Official title

10-IB17 12/15/10 FOIA Opinion Letter to Mr. Cahill re: FOIA Complaint Against Town of Smyrna

Plain-English summary

A Smyrna resident complained that the town violated both FOIA and its own Town Charter in how it was handling the hiring of a new police chief. The Department of Justice could only rule on the FOIA piece; it has no authority to decide whether a Town Charter was violated. Most of the complaint was too vague to investigate, but three specific claims held up: that a three-member "Personnel Subcommittee" charged with the police chief search had met and decided things outside public view, that the Town Council routinely discussed town business and reached decisions over email, and that the Subcommittee planned to withhold the police chief applications from the public.

The Town admitted the Subcommittee had violated FOIA: it met without posting notice or an agenda, did not open in public session before going into executive session, did not return to public session before adjourning, and did not keep minutes. The Subcommittee tried to fix this by holding a properly noticed meeting to reconsider the applications, though even that meeting appears to have skipped a formal return to open session before voting. The AG called that remaining defect "strictly technical," since no members of the public were present anyway, and required no further remedy.

On the applications themselves, the AG found they were not public records at all. Delaware's common-law right of privacy, which the AG's office had previously extended to records about applicants' qualifications for public jobs, exempted them from FOIA regardless of the Subcommittee's process problems. On email, the AG distinguished two patterns: council members occasionally copying colleagues on emails without response, which was not a violation because no active exchange led to a vote or consensus, and a quorum of the Council discussing the police chief search by email, which the Town assured the AG did not include any votes and so also did not violate FOIA. A Town Clerk's separate email poll of members about a Halloween trick-or-treating date was likewise found to be an informal poll rather than a deliberative quorum exchange.

Currency note

This opinion was issued in 2010. 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

Did the Town of Smyrna violate FOIA in how it hired a new police chief?

Yes, in part. The AG found the Personnel Subcommittee handling the search had violated FOIA's basic open-meetings requirements, meeting without notice or an agenda, skipping public session before and after executive session, and failing to keep minutes.

Were police chief job applications public records the town had to release?

No. This opinion held that job applications for a police chief position were exempt from FOIA under Delaware's common-law right of privacy, which the AG's office had previously extended to protect records of an applicant's qualifications for public employment.

Did Town Council members violate FOIA by discussing town business over email?

Not under this opinion. The AG found FOIA's open-meetings requirement is triggered only by "an active exchange of thoughts and opinions" among a quorum that leads to a vote or consensus. Because the Town assured the AG no votes were taken over email, a quorum's email discussion of the police chief search did not violate FOIA, nor did a clerk's informal email poll about a Halloween trick-or-treating date.

Did the town have to redo its vote to hire a police chief after this ruling?

No. Although the Subcommittee's re-noticed meeting appears to have skipped a formal return to open session before voting, the AG found this a "strictly technical" violation, since no members of the public were present, and ordered no further remediation.

Background and statutory framework

Delaware's FOIA requires every meeting of a public body to be open to the public except for specifically permitted closed sessions, 29 Del. C. § 10004(a), and defines "public body" broadly enough to include a subcommittee that is supported by public funds or charged with making recommendations to a public body, 29 Del. C. § 10002(c). Votes on public business must occur at a public meeting, with the results made public, 29 Del. C. § 10004(c), and separate provisions govern the contents and timing of meeting notices, agendas, and minutes, 29 Del. C. § 10004(e) and (f). A complaint to the Attorney General need only "set forth briefly the nature of the alleged violation," 29 Del. C. § 10005(e), but the AG requires the alleged facts to be specific enough for the AG and the public body to evaluate, per Op. Att'y Gen. 96-IB05, 1996 WL 114716 (Del. A.G. Feb. 13, 1996).

Public records must generally be open to inspection and copying, 29 Del. C. § 10003(a), but records "specifically exempted from public disclosure by state or common law" fall outside that requirement, 29 Del. C. § 10002(g)(6). The AG applied Delaware's common-law right of privacy, recognized by the Delaware Supreme Court in Reardon v. New-Journal Co., 164 A.2d 263, 266 (Del. 1960), as protecting against disclosure of matters the public has no legitimate concern in or that would cause a person of ordinary sensibility shame or humiliation; the AG's office had previously extended that right specifically to "records relating to the job qualifications of applicants for public employment" in Op. Att'y Gen. 05-IB20, 2005 WL 2334348 (Del. A.G. July 27, 2005).

On email communications, the AG applied its own standard from Att'y Gen. Op. 06-IB16, 2006 WL 2435111 (Del. A.G. Aug. 7, 2006), that FOIA's open-meetings requirement needs "an active exchange of thoughts and opinions" among a quorum leading to a vote or an agreed course of action, not mere copying of emails or informal polling. On the Halloween-date poll specifically, the AG drew on the Delaware Court of Chancery's reasoning in Tryon v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 15719 (Del. Ch. Apr. 20, 1990), which held that a school board president's individual calls polling members on how they were likely to vote were not a serial quorum because the calls were simply a way to gauge the board's readiness to vote at a scheduled meeting, not a means of circumventing FOIA.

Citations

• 29 Del. C. § 10005(e) (complaint contents; DDOJ determination authority)
• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)
• 29 Del. C. § 10002(c) (definition of "public body," including certain subcommittees)
• 29 Del. C. § 10004(c) (votes on public business must occur at a public meeting)
• 29 Del. C. § 10004(e) and (f) (meeting notice, agenda, and minutes requirements)
• 29 Del. C. § 10003(a) (public records open to inspection and copying)
• 29 Del. C. § 10002(g)(6) (exemption for records specifically exempted by state or common law)
• Reardon v. New-Journal Co., 164 A.2d 263, 266 (Del. 1960) (Delaware Supreme Court; common-law right of privacy)
• Tryon v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 15719 (Del. Ch. Apr. 20, 1990) (Delaware Court of Chancery; informal polling of board members is not a serial quorum)
• Op. Att'y Gen. 96-IB05, 1996 WL 114716 (Del. A.G. Feb. 13, 1996) (FOIA complaints must be factually specific enough to permit a response)
• Op. Att'y Gen. 05-IB20, 2005 WL 2334348 (Del. A.G. July 27, 2005) (common-law privacy extended to public-job applicant qualification records)
• Att'y Gen. Op. 06-IB16, 2006 WL 2435111 (Del. A.G. Aug. 7, 2006) (FOIA's open-meetings requirement needs an active exchange leading to a vote or consensus)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/12/15/10-ib17-121510-foia-opinion-letter-to-mr-cahill-re-foia-complaint-against-town-of-smyrna/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 10-IB17

December 15, 2010

Patrick J. Cahill

555 Kates Way

Smyrna, DE 19977

RE: Freedom of Information Act Complaint Against Town of Smyrna

Dear Mr. Cahill:

On November 10, 2010, the Delaware Department of Justice (“ DDOJ ”) received your complaint that the Town of Smyrna (“ the Town ”) violated the Freedom of Information Act (“ FOIA ”) and the Town Charter. 1    On the same day that we received your complaint, the DDOJ forwarded your letter to the Town, asking it to address only two issues in your complaint:  whether the Town violated FOIA by not having public meetings  of  the  committee  charged  with  selecting  a  police  chief,  and  whether applications for the position of police chief are public records under FOIA.  We received the Town’s response on November 16, 2010.  We then asked the Town to address whether the Council has been having email discussions that violate FOIA.  We received that response on December 7, 2010. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005(e).

RELEVANT FACTS

While FOIA requires that a complaint to the Attorney General only has to “set forth briefly the nature of the alleged violation,” 29 Del. C. § 10005(e), a complaint must provide facts that, if true, would prove a violation, and that the facts alleged must be specific enough to permit the public body to formulate a response.  Op. Att’y Gen. 96- IB05 , 1996 WL I 14716 (Del. A.G. Feb. 13, 1996).  Most of what you have asserted is not factually specific enough for us to determine that a violation has occurred or for the Town to prepare a response.  For example, although you claim that a majority of the Town Council has “engaged in a pattern of behavior that indicates that they will continue to violate FOIA in the future,” you point to past conduct that you do not describe other than to say that in ending the employment of town employees “they violated FOIA several times [and] the council has since violated FOIA on a wholesale basis.”

The only facts that present a possible violation that the Town can address are your allegations that 1) a committee of the Town Council–formed to handle the hiring of a new chief of police–has engaged in meetings or informal decision-making outside of the public’s view, that 2) they “routinely” discuss town business by email, and “come[] to decisions  during  these discussions on how they are going to vote,” including  on the selection  of the police chief and on the date for Halloween trick-or-treating, and that 3) the committee intends not to release the police chief applications to the public. 2

The Town has conceded that the three-member “Personnel Subcommittee” to select a police chief did violate FOIA in:

1. not posting notice, including the agenda, for subcommittee meetings;

2. not meeting in public session before moving into executive session;

3. not returning to public session before adjourning;

4. not keeping meeting minutes.

In  order  to  remedy  its  violations,  the  Personnel  Subcommittee  scheduled  a  properly noticed  meeting  for  November  19,  2010,  to  reconsider  the  police  chief  applications.  Although the Town indicated in its initial response to your complaint that the Personnel Subcommittee  will “convene in open session, properly move into executive session, and return to open session prior to any vote or decision making,” it appears from the minutes of that re-scheduled meeting that the Subcommittee may not have formally returned to open session before voting.

As  to  informal  or  email  discussions  among  council  members,  the  Town  has identified two scenarios that do occur.  In the first scenario, individual council members who   are exchanging emails on matters of public business sometimes copy their exchanges to all council members; however, the copied members do not respond.  In the second  situation,  a  quorum  of  Council  has  exchanged  emails  on  matters  of  public business.

RELEVANT STATUTES

“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].”  29 Del. C. § 10004(a).  “Public body” includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making “reports, investigations or recommendations” to a public body.  29 Del. C. § 10002(c).  A public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.”  29 Del. C. § 10004(c).  Sections 10004(e) and (f) of Title 29 set out the requirements for meeting notices, agendas and minutes.

“All public records shall be open to inspection and copying by any [person]….” 29 Del. C. § 10003(a).  However, records “specifically exempted from public disclosure by state or common law” are not public records.  29 Del. C. § 10002(g)(6).

DISCUSSION

The Town now recognizes that the Personnel Subcommittee is a public body, subject to FOIA.  It attempted to remedy its past violations by reconsidering, according to the requirements of FOIA, its review of police chief applications, although it failed to formally return to public session for voting.  However, in this case the violation was strictly technical, as there were no members of the public present for the public session. 3    There is no need for this office to order any further remediation.

As to your concern that the Council will not make the police chief applications available to the public, employment  applications  are not “public  records” as defined in FOIA,  because  they  are  “specifically  exempted  from  public  disclosure  by  state  or common law.”  29 Del. C. § 10002(g)(6).  Delaware recognizes a common law right of privacy which protects an individual from public disclosure of any matter “with which the public has no legitimate concern” or which could “cause mental suffering, shame or humiliation to a person of ordinary sensibility.”  Reardon v. New-Journal Co ., 164 A.2d 263, 266 (Del. 1960).  This office has extended the right of privacy to “records relating to the job qualifications of applicants for public employment[.]”  Op. Att’y  Gen. 05-IB20 , 2005 WL 2334348, *2 (Del. A.G. July 27, 2005).

The emails  that were  copied  to  all members  of Council  did not  violate  FOIA because  the elements  of a constructive  or serial quorum  were  not met.  FOIA  is only violated  where  there  has  been  “an  active  exchange  of  thoughts   and  opinions  and members were asked to vote or adopt a particular point of view or reach a consensus on what action to take.”  Att’y Gen. Op. 06-IB 16 , 2006 WL 2435111, *4 (Del. A.G.  Aug. 7, 2006) (emphasis added). 4    The Smyrna Council apparently did exchange emails in which a quorum did discuss such matters as how the Council should advertise for the position of Police Chief.  Other emails expressed the sender’s  opinions as to who should be involved in  the  selection  process  and  who  should  have access  to  the  applicants’  submissions.  Although we have not asked for or been provided with these emails, the Town assures us that no votes were taken except during properly noticed public meetings.

As to the emails concerning the selection of a date for Halloween, apparently the emails were initiated by the Town Clerk to poll the members.  It does not appear that there was an email discussion among a quorum of members, although every member was polled.  In circumstances similar to those that occurred here, the Court of Chancery held that a series of calls between the President of the Board of Education and the individual Board members did not constitute a serial quorum because the calls were “not a means of circumventing the Freedom of Information Act through serial telephone conversations.  Rather, these phone conversations were merely a means [to] informally poll the Board to find out how each member was likely to vote …. [I]t is apparent that Dr. Graham’s only purpose  was to gain  a general  sense  of the Board’s  position  and to determine if they would be ready to vote at the [scheduled meeting] ….” Tryon v. Brandywine Sch. Dist. Bd. Of Educ , 1990 WL 15719, *3 (Del. Ch. April20, 1990).

CONCLUSION

For the reasons stated herein, we find that the Town of Smyrna has violated the Freedom of Information Act concerning the failure of the committee of the Town Council that is handling the hiring of a police chief to give public notice of its meetings or follow any of the FOIA requirements for public bodies.  However, that committee has now complied with FOIA in holding its meeting on November 19, 2010, and there is no need to require the Town to take remedial action.  The applications for the police chief position are not public records within the meaning of FOIA, there is no FOIA violation in refusing to make those documents available to the public.  At no time did a quorum of the Council participate by email in an active exchange of ideas with a vote taken or a consensus reached.  Therefore, the email exchanges did not violate FOIA.

Sincerely,

/s/ Judy Oken Hodas

Judy Oken Hodas

Deputy Attorney General

Approved:

/s/ Lawrence W. Lewis

Lawrence W. Lewis, State Solicitor

cc: Opinion Coordinator

John Terence Jaywork, Esquire

FOOTNOTES

1 The DDOJ has no authority under the Freedom of Information Act to determine whether the Charter has been violated, and therefore we will not address those allegations here.

2 Whether the committee destroys any applications or refuses to allow other Council members to see them is not within the purview of FOIA.

3 There is some suggestion in the Town’s response that members of the public left the meeting room when the Subcommittee went into executive session.  It is not clear whether anyone tried to invite them back into the meeting room when the executive session concluded.  That would be the best practice, unless the public body conducts its executive session in another room, and returns to the public meeting room after the executive session.

4 Whether asking fellow members of a public body to “adopt a particular point of view” can be prohibited consistent with the First Amendment to the United States Constitution is a question we do not have to address here because it is not raised by t\Je facts presented and may be beyond the scope of our FOIA enforcement powers.