Is a private land trust that collects rent and pays local taxes for a Delaware village subject to the state's open records law?

Official title

18-IB28 6/1/2018 FOIA Opinion Letter to Mr. Warren Rosenkranz re: FOIA Complaint Concerning the Arden Trust

Plain-English summary

A resident of the Village of Arden asked the three Trustees of the Arden Trust for the minutes of their meetings going back about seven months. The Trustees refused, telling him that on their attorney's advice, the Trust isn't a "public body" under Delaware law and therefore isn't covered by FOIA at all. The resident disagreed and asked the AG to weigh in.

The Trust's arrangement with the Village is unusual: the land under Arden was originally granted to the Trust in 1908, and while the Trust deeded the Village's common land over to the municipal government in 1965, it still owns all 196 individually leased lots in the village, collects annual rent from residents (set by a Board of Assessors), and uses that money to pay county and local taxes and cover the Village's administrative expenses. Despite that close financial relationship, the AG found the Trust is not a public body. Delaware's two-part test asks first whether an entity is a governmental or government-created body, and second whether it is publicly funded or charged by a public official to advise or report; both parts have to be satisfied. The AG found the Trust fails the very first part: it wasn't established by the state legislature, wasn't appointed by any public official, and wasn't otherwise empowered by a government entity. It exists because of a private 1908 land grant, and a later legislative act that simply "approved" reincorporating the Village didn't retroactively convert the Trust itself into a government creation. Because the Village and its own governing Town Assembly are separately recognized as public bodies, the opinion drew a clean line between the municipality (covered by FOIA) and the privately created Trust that happens to fund some of its operations (not covered).

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

Does collecting rent that pays for local government expenses make a private trust a "public body" under Delaware FOIA?

No, based on this opinion. The AG found that funding local government functions is not enough on its own; the entity also has to have been created, appointed, or empowered by a government body in the first place, which the privately created Arden Trust was not.

If a village's town charter was approved by the Delaware General Assembly, does that make every entity connected to the village a public body too?

No, according to this opinion. The AG rejected the argument that legislative approval of the Village of Arden's reincorporation retroactively made the separately, privately created Arden Trust a government creation.

What is Delaware's two-part test for whether an entity is a "public body" subject to FOIA?

Per this opinion, an entity must be a governmental, government-created, or government-appointed body of the type the statute describes, and it must be publicly funded or charged by a public official to advise or report; an entity that fails either part is not a public body, and here the Trust failed the first part.

Are all entities connected to a Delaware municipality automatically covered by FOIA the same way the municipality is?

No, per this opinion. The AG treated the Village of Arden and its Town Assembly as public bodies because they are the municipal government itself, but treated the separately created Arden Trust, which merely has a financial relationship with the Village, as outside FOIA's reach.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) for a determination that a public body violated the law. Section 10002(h) supplies the two-part test for "public body," and § 10002(k) defines "public funds" as funds derived from the State or a political subdivision of the State. The opinion applied its prior recognition that Delaware municipalities and their governing bodies, including the Village of Arden and its Town Assembly, are public bodies, but distinguished the Arden Trust as a legally separate, privately created entity. The opinion also referenced State v. Camden-Wyoming Sewer and Water Auth. for the related point that the two-part test does not apply where a statute specifically designates an entity as a public body, a carve-out the AG found did not help the requester here since no statute designates the Trust itself as public.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10002(h) (two-part definition of "public body")
• 29 Del. C. § 10002(k) (definition of "public funds")
• State v. Camden-Wyoming Sewer and Water Auth., 2012 WL 5431035 (Del. Super. Nov. 7, 2012) (Delaware Superior Court; two-part test inapplicable where a statute specifically designates an entity as a public body)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/06/02/18-ib28-6-1-2018-foia-opinion-letter-mr-warren-rosenkranz-re-foia-complaint-concerning-arden-trust/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/06/Attorney-General-Opinion-No.-18-IB28.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 18-IB28

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 18-IB28

June 1, 2018

VIA US MAIL AND EMAIL

Warren Rosenkranz

2315 Woodland Lane

Arden, DE 19810

[email protected]

RE: FOIA Correspondence Regarding the Arden Trust

Dear Mr. Rosenkranz:

We write regarding your correspondence, received on May 14, 2018 [1], alleging that the Arden Trust ("Trust") and the Trustees of Arden ("Trustees") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). [2] We treat your correspondence as a petition ("Petition") for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. The material issue in this case is whether the Arden Trust and the Trustees of the Village of Arden are a "public body" within the meaning of FOIA. For the reasons set forth below, we conclude that the Trust is not public body and, therefore, neither the Trust nor its Trustees are subject to FOIA.

PROCEDURAL BACKGROUND

On March 5, 2018, you sent a FOIA request to the Trustees for minutes of their meetings from August 1, 2017 through the date of your request. In a letter dated March 16, 2018, the Trustees sent the following response to your request: "Based on the advise [sic] of our attorney, the Arden Trust is not a public body according to Title 29 of the Delaware Code, and therefore not subject to FOIA." On April 26, 2018, you mailed your Petition to this Office contesting the Trustees' position that the Trust is not a public body.

FACTUAL BACKGROUND

The Village of Arden ("the Village") is a small municipality created by a town charter. [3] The charter also establishes a Town Assembly, which is empowered to enact ordinances and adopt resolutions pertaining to the governance of the Village. [4] The Trust was created by a land grant in 1908; it is comprised of three Trustees. [5] In 1965, after the Village was incorporated as a municipality, the Trust deeded all of the common land from the original grant to the Village, and the Village owns and maintains those lands. [6] The Trust currently owns all private land in the Village, comprised of 196 individual lots, and leases those lots to individuals for their homes or businesses. The Trustees collect rent from Village residents annually. The amount of rent owed by each resident each year is determined by a Board of Assessors. Those monies are collected by the Trustees who use the collective funds to pay county and local taxes, as well as to cover administrative expenses for the Village. [7]

DISCUSSION

To determine if an entity is a "public body," and thus subject to FOIA, a two-part analysis is required. First, we must determine whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State" as further defined by the statute. [8] If so, we must next determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or is impliedly or specifically charged to advise or to make reports, investigations, or recommendations. "Public funds," are defined as "those funds derived from the State or any political subdivision of the State." [9] Importantly, both parts of this two-part test must be satisfied in order for an entity to qualify as a "public body" under FOIA. [10]

We have previously determined that, like all municipalities in the State of Delaware, the Village and its governing body, the Town Assembly, are public bodies and therefore subject to FOIA. [11] However, the Trust is separate and distinct from the Village and the Town Assembly. Unlike the Village and Town Assembly, the Trust is not a municipality, so it is not a political subdivision of the State. It was not established by an act of the General Assembly or a body established by the General Assembly. [12] Nor was it appointed by any body or public official of the State, or otherwise empowered by any state governmental entity. It was created by a private land grant. [13] As such, we believe that the first definitional element of a "public body" is not met and the Trust cannot be a public body.

CONCLUSION

For the reasons discussed above, it is our determination that the Trust is not public body and, therefore, neither the Trust nor its Trustees are subject to FOIA.

Very truly yours,

/s/ Zoe Plerhoples

Zoe Plerhoples

Deputy Attorney General

APPROVED BY:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Edward Rosenthal, Esq. (via email)

[1] The letter, postmarked April 26, 2018, was addressed to 830 North French Street. Upon information and belief, the Department of Justice, which is located at 820 North French Street, did not receive the letter until May 14, 2018.

[2] The Trust is administered by three Trustees. The current Trustees are Mike Curtis, Carl Falco, and Elizabeth Varley.

[3] See Charter of Arden.

[4] Id. at § 5(c).

[5] There is a dispute between the parties as to whether the Trustees are "elected." Whether the Trustees are elected is not material to this analysis, although it appears from the documentation submitted by the parties that the Trustees retain the power to fill vacancies subject to the approval of a majority of residents.

[6] Response Letter at 2.

[7] Id. See also Charter of Arden at § 7.

[8] See 29 Del. C. § 10002(h).

[9] 29 Del. C. § 10002(k).

[10] See Del. Op. Att'y Gen. 12-IIB05, 2012 WL 1244481, at 2 (Mar. 27, 2012) (noting that an entity is not a public body unless both parts of the two-part test are met). But cf. State v. Camden-Wyoming Sewer and Water Auth., 2012 WL 5431035, at 3-4 (Del. Super. Nov. 7, 2012) (two-part test not applicable if statute specifically designates an entity as a public body for purposes of FOIA).

[11] Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 3 (Apr. 25, 2017) (citing Del. Op. Att'y Gen. 96-IB13, 1996 WL 254932, at 2 (May 6, 1996)).

[12] Cf. Del. Op. Att'y Gen. 17-IB34, 2017 WL 3426274 (July 28, 2017). In Trustees of New Castle Common opinion, the body at issue was a corporation created by the General Assembly to control and administer the use of public lands. Id. at *2. The income derived from the sale of that land, which was effectively granted to it by the State, was to be used "for the benefit of the same people of New Castle for whom the original transfer was made." Id. We noted in that case that the Trust of New Castle Common was specifically created for the purpose of managing public lands for the common good. Id.

[13] You state in your petition that the Act to Reincorporate the Village was "approved" by the General Assembly in 1967. We do not think that this act "created" the Trust.