Do public meeting minutes have to include everything a resident said during public comment?

Official title

16-IB16 7/6/2016 FOIA Opinion Letter to Mr. Frank Cannon re: FOIA Complaint Concerning City of Seaford

Plain-English summary

A resident spoke during public comment at a Seaford City Council meeting to criticize the city's proposed social media policies, submitting a written copy of his remarks. When the council approved the meeting minutes two weeks later, the minutes included verbatim excerpts of his objections and his conclusion, but left out other parts of his statement, including his discussion of the incident that prompted the policy, the role of a non-resident in that incident, and some of his personal commentary. The resident argued this omission distorted the public record and deprived the public of information needed to understand his position.

The AG found no FOIA violation. While Delaware's FOIA requires public bodies to keep minutes, it doesn't require them to be verbatim or to specify how detailed a summary must be. But once a body chooses to summarize a topic in its minutes, it must do so fairly, without misstating or omitting what actually happened in a way that would be materially misleading. Here, the minutes captured the subject of the resident's statement, a bullet-point list of his specific objections quoted from his own written statement, and his conclusion, alongside an accurate record of the council's subsequent discussion and vote. The AG concluded that was a fair and balanced summary, not a materially misleading one, even though it left some detail out.

Currency note

This opinion was issued in 2016. 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

Q: Do meeting minutes have to be a word-for-word transcript of what a speaker said?
A: No, according to this opinion. Delaware's FOIA requires public bodies to maintain minutes, but doesn't require a verbatim account or specify exactly how detailed a summary of public comment must be.

Q: If a council leaves some of my public comment out of the minutes, is that automatically a FOIA violation?
A: Not by itself, under this opinion. The key question is whether the summary the body chose to include is materially misleading, meaning it misstates or omits what actually happened in a way that distorts the substance of what occurred.

Q: Once a public body decides to summarize a topic in its minutes, does it have any obligation about how it does so?
A: Yes. Per this opinion's reliance on a Delaware Court of Chancery case, once a public body undertakes to cover a topic in its minutes, it becomes bound to reflect that topic fairly and in a balanced manner, not in a way that misstates or omits what actually happened.

Q: Does it matter that the minutes only included some of my written objections, not my whole statement?
A: Under the reasoning in this opinion, no, as long as the excerpted portions and the overall summary fairly captured the substance of what was said. The AG found that quoting the resident's specific objections and conclusion, alongside an accurate account of the council's discussion and vote, was fair and balanced despite not reproducing the entire statement.

Background and statutory framework

FOIA requires public bodies to "maintain minutes of all meetings," including a record of members present and of each vote taken, 29 Del. C. § 10004(f), but the statute doesn't require minutes to summarize every subject discussed or specify how detailed any summary should be, a point the opinion drew from Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ., a Delaware Court of Chancery decision. The controlling standard for when a body does choose to summarize a topic comes from Reeder v. Department of Insurance, another Court of Chancery decision: once a public body undertakes to address a matter in its minutes, it must do so fairly and in a balanced manner that does not misstate or omit what happened in a materially misleading way.

Citations and references

Statutes:

• 29 Del. C. § 10004(f), requirement to maintain meeting minutes recording attendance and votes

Cases:

• Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401, *4 (Del. Ch. Dec. 5, 1995), FOIA doesn't require minutes to summarize every subject discussed
• Reeder v. Department of Insurance, 2006 WL 510067, at *15 (Del. Ch. Feb. 24, 2006), once a body summarizes a topic in its minutes, it must do so fairly and without material misstatement

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/07/06/2155/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2016/07/Attorney-General-FOIA-Opinion-No.-16-IB16-Scanned-1.pdf

Original opinion text

PRINT VERSION: Attorney General FOIA Opinion No. 16-IB16

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 16-IB16

July 6, 2016

VIA EMAIL AND U.S. MAIL

Frank “Dan” Cannon

411 Nylon Blvd.

Seaford, DE 19973

[email protected]

Re:  FOIA Petition Concerning the City of Seaford

Dear Mr. Cannon:

On March 16, 2016, the Delaware Department of Justice (“DOJ”) received your petition (“Petition”) requesting our determination, pursuant to the Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”), of whether the Council of the City of Seaford (“Council”) violated FOIA’s open meetings provisions by failing to accurately reflect the comments you made during the January 12, 2016 Council meeting. Pursuant to our routine process in responding to petitions for determination under FOIA, we invited the Council to submit a written response to your Petition.  We received the Council’s response (“Response Letter”) on March 24, 2016.  We have reviewed your correspondence and the Council’s Response Letter. Because the minutes of the January 12, 2016 Council meeting summarized your comments in a way that was not materially misleading, we conclude that the Council has not violated FOIA as alleged in the Petition.

I. BACKGROUND

On January 12, 2016, the Council held its regularly scheduled public Council meeting. The meeting agenda included one general period for public comment as well as an agenda item for the following: “Present the proposed Social Media Policies for General Employees and Police Department Employees based on the review by the Council Solicitor” (the “Policies”).  The meeting agenda included a copy of the Policies as attachments.

During the time for public comment, you made a statement regarding the proposed Policies. You also provided a written copy of your statement to the Council. Later in the meeting, the Council discussed and voted on the Policies.

At the next Council meeting, on January 26, 2016, the Council approved the minutes of the January 12, 2016 Council meeting.  The minutes included significant verbatim excerpts from your statement commenting on the Policies.  The minutes do not, however, include your entire written statement.  The minutes also include a summary of the Council’s discussion of the Policies and record of the vote by members of the Council.

II. SUMMARY OF ARGUMENTS

In your Petition, you allege that the Council violated FOIA by inaccurately recording your comments during the Council meeting held on January 12, 2016. Specifically, you allege that Council’s choice to omit your critical commentary, a discussion of the precipitating incident, the role of a non-Seaford resident in the matter, your personal opinion regarding the employee’s actions and context from its minutes constitutes “a distortion of the public record.”  In doing so, you allege that the Council “has failed in its duty to accurately record what actually happened thus depriving the public of important information needed to understand [your] opinion(s) regarding [the City’s actions in relation to an employee’s use of social media].”  You also note that you “recognize that the minutes of a public meeting will not be a verbatim account of what transpires.”

In its Response Letter, the Council acknowledges that FOIA requires public bodies to maintain minutes, but maintains FOIA does not require minutes to be a verbatim report of what was said. The Council contends that its minutes went into considerable detail and accurately reflected the substance of your statement.

III.  APPLICABLE LAW

Pursuant to 29 Del. C. § 10004(f), public bodies are required to “maintain minutes of all meetings . . . Such minutes shall include a record of those members present and a record, by individual members….of each vote taken and action agreed upon.”

IV. DISCUSSION

While Delaware’s FOIA requires public bodies to maintain minutes of all meetings, it does not require minutes to include summaries of subjects discussed or attempt to define how specific a summary should be. [1]  However, if a public body does summarize, then it must do so in a way that  does “not misstate or omit what in fact happened.” [2]

In Reeder v. Department of Insurance , [3] the Court of Chancery reviewed the minutes of a meeting of the Defensive Driving Credential Committee of the Department of Insurance (“DDCC”). During the meeting, a member of the public asked the DDCC to request that the Insurance Commissioner conduct an investigation.  The minutes of the meeting indicated that the request had been made, but did not reflect the DDCC’s affirmative response to the request. The court expressly declined to decide the question of whether the DDCC was required to include, in the first instance, the fact that the request had been made. Rather, the Court  concluded that, once the DDCC decided to address the request in its minutes, it “became bound to reflect its own reaction to that request.” [4]   The court reasoned that, once the DDCC decided to address the matter in its minutes, “it had a duty to do so in a fair and balanced manner that [did] not misstate or omit what in fact happened.” [5] In other words, “once a public body undertakes to cover a particular topic in minutes, it cannot describe the topic in a manner that is materially misleading.” [6]

Here, once the Council chose to summarize your public comments, it had a duty to portray them in a way that was not materially misleading. The meeting agenda included copies of the Policies. The Public Comment portion of the minutes included:  the subject matter of your statement; a bullet-point list of your objections to the Policies (excerpted verbatim from your written statement); and your conclusion. Council’s discussion of and vote on the Policies is reflected under the heading Old Business in the minutes, consistent with the published agenda.  We conclude that the Council addressed your statement in a fair and balanced manner and any omissions the Council made were not materially misleading.

CONCLUSION

Because the minutes of the January 12, 2016 meeting summarized your comments in a way that was not materially misleading, the Council has not violated FOIA as alleged in your Petition.

Very truly yours,

/s/ Carla A. K. Jarosz

Carla A.K. Jarosz

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, State Solicitor

cc:

Danielle Gibbs, Chief Deputy Attorney General (via email)

Michelle E. Whalen, Deputy Attorney General (via email)

James Fuqua, Esq. (via email)

[1]           Common Cause of Del. v. Red Clay Consol. Sch. Dist. Bd. of Educ. , 1995 WL 733401 *4 (Del. Ch. Dec. 5, 1995) (describing public body’s duty to maintain minutes in context of executive session).

[2]           Del. Op. Atty. Gen. 07-IB03 (quoting Reeder v. Dep’t of Ins. , 2006 WL 510067 at p. 15 (Del. Ch., Feb. 24, 2006) (Strine, V.C.)).

[3]           Reeder v. Department of Insurance , C.A. No. 1553-N, 2006 WL 510067, at *15 (Del. Ch., Feb. 24, 2006) (Strine, V.C.).

[4]           Id .

[5]           Id .

[6]           Id . (emphasis in original).