Does a city council violate Delaware's open-meetings law by holding a press conference without notice?

Official title

18-IB07 2/9/2018 FOIA Opinion Letter to Mr. Frank "Dan" Cannon re: FOIA Complaint Concerning the City of Seaford

Plain-English summary

Frank "Dan" Cannon challenged a January 16, 2018 press conference at Seaford City Hall, where the Mayor, Councilman Dan Henderson, and other individuals spoke about a city ordinance the Council had already passed the previous month. A quorum of the Council attended, and the city had posted paper notice a week ahead announcing the press conference, but without an agenda describing the topics to be discussed. Cannon argued the gathering was really a FOIA "meeting" that needed proper agenda notice, especially given what he saw as the ordinance's questionable legality, and pointed to an earlier AG opinion that had found a different Seaford Council notice deficient for lacking a general statement of major issues.

The Council countered that the press conference wasn't for "discussing or taking action on public business," since the ordinance had already been debated and enacted weeks earlier, and framed the event as economic-development outreach rather than part of the Council's policy-making process. The AG agreed with the Council on a narrower ground: FOIA's definition of "meeting" requires that members of the public body actually discuss public business together, and while a quorum was present and one councilman spoke about the ordinance, the AG saw no evidence of the council members discussing anything among themselves at the event. Because that discussion element was missing, the gathering wasn't a "meeting" under FOIA at all, so the notice-and-agenda requirements never applied. The opinion separately reiterated that the AG has no power to impose punitive sanctions for FOIA violations, in response to Cannon's request for such a remedy.

Currency note

This opinion was issued in 2018. 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

If enough council members to form a quorum show up at a public event, does that automatically trigger FOIA's meeting rules?

No, according to this opinion. The AG required more than a quorum's mere presence: FOIA's definition of "meeting" requires that the members actually discuss or take action on public business together, which the AG did not find evidence of at this press conference.

Does it matter that one councilmember spoke at length about a controversial ordinance?

Not decisively, based on this opinion. The AG noted a councilmember spoke and various individuals gave statements on a matter of public concern, but distinguished a councilmember addressing an audience from council members discussing the matter amongst themselves, which is what the "meeting" definition targets.

Can the Delaware AG punish a public body for violating FOIA?

No. The opinion reiterated, citing its own recent precedent, that the AG's office has no authority to impose punitive measures for FOIA violations; its enforcement role is limited to recommending remediation or, in its discretion, initiating a lawsuit after finding a violation.

Does this mean a city could hold public announcements about already-decided policy without ever triggering FOIA?

Based on this opinion's reasoning, a gathering that is purely informational or promotional, without council members actually deliberating together, would fall outside FOIA's meeting definition regardless of how many members attend, though the AG cautioned this determination turned on the specific facts presented.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires public bodies to give seven days' notice of regular meetings, including an agenda with a general statement of major issues to be discussed. 29 Del. C. § 10004(e)(2), § 10002(a). Those requirements apply only to a "meeting," defined as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." 29 Del. C. § 10002(g). This opinion turned on that discussion requirement: a quorum's physical presence at an event is necessary but not sufficient; FOIA's open-meetings provisions are triggered only when the members actually discuss or act on public business together at the gathering.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10004(e)(2) (seven-day meeting and agenda notice)
• 29 Del. C. § 10002(a) (definition of "agenda")
• 29 Del. C. § 10002(g) (definition of "meeting"; quorum gathered to discuss or act on public business)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/02/12/18-ib07-2-9-2018-foia-opinion-letter-mr-frank-dan-cannon-re-foia-complaint-concerning-city-seaford/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/02/Attorney-General-Opinion-No.-18-IB07.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 COUNCIL 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. 18-IB07

February 9, 2018

VIA U.S. MAIL AND EMAIL

Mr. Frank "Dan" Cannon
411 Nylon Blvd.
Seaford, DE 19973
[email protected]

RE: FOIA Correspondence Regarding the City of Seaford

Dear Mr. Cannon:

We write regarding your correspondence alleging that the Council of the City of Seaford
("Council") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007
("FOIA"). We treat your correspondence as a petition for a determination pursuant to 29 Del. C.
§ 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition").
We invited the Council to submit a written response to the Petition. We received the Council's
response ("Response Letter") on January 31, 2018 and your reply thereto ("Reply") on January
30, 2018. As set forth more fully below, it is our determination that the Council did not violate
FOIA as alleged.

In your Petition, you allege that the Council violated FOIA by holding a meeting on January
16, 2018 without providing proper notice thereof. Specifically, you argue that a gathering of a
quorum of the Council's members at a January 16, 2018 press conference, during which the Mayor,
one Councilman Dan Henderson, and several other individuals spoke about the Council's recent
passage of a city ordinance, amounted to a "meeting" of the Council. You note that you observed
the following paper notice outside of City Hall on January 9, 2018: "The City of Seaford Mayor
and City Council will be present at the following events: Press Conference, Tuesday, January 16
starting at 12:30 p.m. at City Hall in the Council Chambers." However, you argue that the Council
violated FOIA by failing to publish an agenda with a statement of the major issues to be discussed.[1]

You argue that the Council's failure to properly notice the press conference is particularly
disturbing due to the potential illegality of the ordinance, which you state is of major public
concern.[7] In support, you cite to this Office's recent opinion, Del. Op. Att'y Gen. 17-IB17,[8]
wherein we determined that the Council violated FOIA by failing to include an agenda with the
notice for its 2017 Planning Session and by subsequently failing to include a general statement of
the major issues expected to be discussed.

In its Response Letter, the Council argues that "[t]he Press Conference was not for the
purpose of 'discussing or taking action on public business.'" The Council notes that the ordinance
had already been discussed and enacted by the Council on December 12, 2017 and argues: "a
Press Conference, intended to attract economic development, is not part of the policy-making
process that FOIA was intended to regulate."

In your Reply, you argue that the matters discussed at the press conference are indeed
"public business" as defined by FOIA.[9] You note that the ordinance was not then in effect and
again highlight the "potential illegality" of the ordinance. You also state that Councilman
Henderson presented a vigorous defense of the ordinance during the press conference.[10]

As you correctly note, a "meeting" is defined in Delaware's FOIA as "the formal or
informal gathering of a quorum of the members of any public body for the purpose of discussing
or taking action on public business."[6] Importantly, we believe a necessary element of this
definition is that members of the public body discuss public business. Here, we recognize that a
quorum of the Council attended the press conference, that various individuals provided statements
regarding a matter of public concern, and that one councilmember was among the speakers, we
see no evidence of a discussion among the attending councilmembers during the press conference.

Under the circumstances, we are not persuaded that the gathering amounted to a meeting of the
Council. Accordingly, it is our determination that the Council did not violate FOIA as alleged.

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

APPROVED BY:

Allison E. Reardon, State Solicitor

cc: James Fuqua, Esq. (via email)

[1] See 29 Del. C. § 10004(e)(2) ("All public bodies shall give public notice of their regular
meetings and of their intent to hold an executive session closed to the public, at least 7 days in
advance thereof. The notice shall include the agenda, if such has been determined at the time, and
the dates, times and places of such meetings, including whether such meeting will be conducted
by video-conferencing . . . ."); 29 Del. C. § 10002(a) ("'Agenda' shall include but is not limited to
a general statement of the major issues expected to be discussed at a public meeting, as well as a
statement of intent to hold an executive session and the specific ground or grounds therefor under
§ 10004(b) of this title.").

[6] 29 Del. C. § 10002(g).

[7] The question of whether the Council had the legal authority to enact the ordinance is
outside the scope of FOIA and, as such, is not addressed herein.

[8] 2017 WL 3426255 (July 11, 2017).

[9] See 29 Del. C. § 10002 (defining "public business").

[10] You also appear to request that this Office impose punitive sanctions on the Council.
However, this Office has made clear that it does not have the authority to impose punitive measures
for FOIA violations. See, e.g., Del. Op. Att'y Gen. 16-IB23, at *2 (Oct. 28, 2016) ("We routinely
request remediation where we believe such remediation to be appropriate, but this Office is not
vested with the authority to impose punitive measures for FOIA violations."). "Rather, our
enforcement power would be limited to initiating suit, at our sole discretion, after a finding of a
FOIA violation." Del. Op. Att'y Gen. 18-IB05 (Jan. 30, 2018) (citing 29 Del. C. § 10005(e)).