Is a Delaware county 'working group' picked by the County Administrator subject to FOIA's open meeting rules?
Official title
19-IB54 9/26/2019 FOIA Opinion Letter to Mr. Keith Steck re: FOIA Complaint Concerning Sussex County
Plain-English summary
Sussex County formed a Buffers and Wetlands Working Group in early 2019 after Council President asked for one to make recommendations on a proposed wetlands ordinance. The County Administrator selected the members, drawing from County staff (including the Assistant County Attorney) and outside stakeholders (farmers, real estate, environmental, land use). The Council hired a consultant to facilitate the meetings and provide periodic reports back to Council. The group met monthly from February to June 2019.
Keith Steck petitioned, alleging three FOIA violations: (1) meeting notices were posted at the County Council Administrative Building rather than the West Complex Building where the meetings actually occurred; (2) the agendas did not list "review and approval of minutes"; (3) the minutes did not identify members' affiliations or include substantive recitations of discussion.
The AG first decided the threshold question of whether the Working Group was a "public body" subject to FOIA. The two-part § 10002(h) test asks (1) whether the entity is regulatory/administrative/advisory/etc. or otherwise was created or appointed by a state or political-subdivision body or official, and (2) whether it is supported by public funds, expends public funds, or is "impliedly or specifically charged" to advise or report. The County Administrator's role in picking members satisfied prong one; the group's reporting role to Council satisfied prong two. So FOIA applied.
On the merits, the AG found no violations. The notice was posted at the County Administrative Building, which the County represented was the principal office of both the Administrator and (by extension) the Working Group, satisfying § 10004(e)(4). The agendas did not need to list minute approval because the County had not yet approved minutes. The minutes met § 10004(f)'s requirements (members present, votes); the petitioner's preferences for member affiliations and substantive recitations went beyond the statute. The County had also created a website to host all past and future agendas, draft minutes, and presentations.
Currency note
This opinion was issued in 2019. 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
What is the test for whether something is a "public body" under FOIA?
Two parts under § 10002(h). First, the entity must fit the regulatory/administrative/advisory/legislative descriptions, including being a "group, panel, council, or any other entity or body" created by an act of the General Assembly, a body the General Assembly created, or appointed by any body or public official. Second, it must be supported by public funds, expend public funds, or be charged to advise or report.
Does the public body need to be formally appointed by Council?
Not always. AG Opinion 18-IB21 found the Seaford City Manager a "public official" who could trigger the test. AG Opinion 97-IB13 reached a similar result for a committee appointed by the Mayor of Lewes. Here, the County Administrator's selection of members brought the group within FOIA.
Where must FOIA meeting notices be posted?
Under § 10004(e)(4), at the principal office of the public body. If the body has no fixed office, at the place where the meetings are regularly held. The AG accepted that the principal office of the County Administrator (who created and seated the Working Group) was effectively the principal office of the Working Group itself.
Does FOIA require minutes to identify members' affiliations or summarize discussion?
No. Section 10004(f) requires minutes to record the members present and how each member voted. The AG declined to read additional substantive-recitation requirements into the statute. A public body may voluntarily provide more detail.
What did the County add voluntarily after the petition?
A website hosting all past and future agendas, draft minutes, PowerPoint presentations, and Working Group reports. The AG explicitly encouraged that kind of transparency above the statutory minimum.
Background and statutory framework
Section 10002(h) is the gateway provision for Delaware open-meetings law: a body must qualify as a "public body" before the open-meetings rules attach. The two-part test is consistently applied, with this Office reading "appointed by any body or public official" broadly enough to capture Administrator-selected groups.
Section 10004(e)(4) addresses the where of notice (principal office or regular meeting place), with conspicuous posting required. Section 10004(f) addresses minutes content, focused on attendance and voting records. Anything more is a best practice rather than a statutory requirement.
The line between "public body" and "informal advisory group" can be thin. AG Opinion 18-IB28 lays out the test concisely. A working group convened by a state or local public official to advise that body, even with no formal Council vote creating it, can be inside the FOIA tent. Public bodies that want the flexibility of an informal advisory body should be conscious that selection by a public official, plus a reporting duty, will trigger FOIA.
Citations
- 29 Del. C. § 10002(h) (public body definition)
- 29 Del. C. § 10004(e)(4) (notice posting)
- 29 Del. C. § 10004(f) (meeting minutes)
- 29 Del. C. § 10005(e) (petition determinations)
- Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 (June 1, 2018)
- Del. Op. Att'y Gen. 18-IB21, 2018 WL 2266972 (Apr. 27, 2018)
- Del. Op. Att'y Gen. 97-IB13 (June 2, 1997)
Source
- Landing page: https://attorneygeneral.delaware.gov/2019/09/26/19-ib54-9-26-2019-foia-opinion-letter-to-mr-keith-steck-re-foia-complaint-concerning-sussex-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB54.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 19-IB54
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB54
September 26, 2019
VIA EMAIL
Mr. Keith Steck
RE: FOIA Correspondence Regarding Sussex County's Buffers and Wetlands Working Group
Dear Mr. Steck:
We write in response to your correspondence alleging that Sussex County's Buffers and Wetlands Working Group ("the Working Group") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to open meeting requirements. 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. In this Petition, you set forth three separate allegations. You allege Sussex County's Buffers and Wetlands Working Group posted notices of its meetings at an inappropriate location, the agendas of the Working Group were deficient, and that the Working Group minutes do not meet the statutory requirements of FOIA. For the reasons set forth below, we conclude that the Working Group did not violate FOIA as you allege.
BACKGROUND
Following the consideration of a proposed ordinance related to the exclusion of wetlands from density calculations, the President of the Sussex County Council on December 4, 2018 asked that a working group be established "for consideration of buffers and for a recommendation to Council by the end of the First Quarter 2019." Thereafter, the Working Group "was assembled by the County Administrator" and consisted of various stakeholders from a variety of backgrounds, including County staff members and the Assistant County Attorney. The Council hired a consultant for the express purpose of facilitating the Working Group meetings, and the County Administrator explained to the consultant what was expected.
The Working Group met monthly, from February 2019 to June 2019. The consultant that the Council hired led the discussions and communicated with the Working Group participants. The Petition alleges that "[a]lthough the County Council posted notices of meetings [of the Working Group] in the form of an agenda for each meeting, these notices were not posted where the meetings occurred at the County's West Complex Building" and were instead posted "at the County Council's office location in the County's Administrative Building at 2 The Circle in Georgetown." You challenge the sufficiency of the agendas solely because "the monthly agendas made no reference to a review and/or approval of the minutes of the meetings" in violation of the FOIA. Finally, the Petition alleges the minutes are defective insofar as they do not "identify each member's business, organization, or other affiliation nor their expertise or their role as a 'stakeholder' such as farmer, real estate developer, environmentalist, or land use expert." Finally, you allege the minutes are defective, as they do not contain a meaningful recitation of the discussions that were had by the Working Group members.
The County submitted a letter through counsel on September 16, 2019 ("Response"). The County asserts that the Working Group is not a "public body" subject to FOIA's open meeting requirements. Specifically, the County asserts that the Working Group "was not created, selected, approved, appointed or ratified by County Council, and no Council Members are members of the Working Group." The County maintains that the Working Group membership was "assembled by the County Administrator" and not the Council. Finally, the County asserts that its primary role in the Working Group was "simply providing a location for the meeting, with limited participation in the discussions . . . ."
The County next asserts that if the Working Group is found to be a public body, it complied with FOIA's open meeting requirements. The County points out that the Petition concedes that when minutes of the Working Group were requested under the FOIA, minutes were provided. The County continues that, despite the Petition's assertion that the minutes are not substantive, the minutes comply with the requirements of FOIA.
On September 19, 2019, you submitted your rebuttal to the County's position ("the Reply") wherein you assert that the Working Group is a public body, citing in part to the Working Group's reference to the FOIA on its meeting notices. The Reply also reiterates your position that meeting minutes should be required to include the title of each of the Working Group members.
DISCUSSION
The primary determination to be made is whether FOIA's open meeting requirements apply to the Working Group. Deciding this question requires a determination of whether the Working Group is a public body, which is a two-part test. 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," which includes a "group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity." If the first part is met, we then must 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 by any other public official, body, or agency to advise or to make reports, investigations, or recommendations." Both parts of this test must be satisfied in order for an entity to be considered a "public body" under FOIA.
The County asserts that the Working Group is not a public body because the Council "did not make a motion to create or approve the Working Group or to appoint or endorse the chosen members" and further because the County Administrator chose the membership of the Working Group. However, the Response makes clear that the Council President asked for the Working Group's formation specifically to make recommendations back to the Council. If the Working Group was not created by official action of the Sussex County Council, the Council nonetheless called for its formation and hired a consultant specifically to facilitate the Working Group's meetings. The lynchpin here however is the County's concession that the Working Group "originated with the County Administrator" who selected all of the members of the Working Group. Where, as here, a body is comprised of members appointed by a "public official," the body will be found to meet the first part of the "public body" test. The Working Group's membership was selected by the County Administrator and, as such, the first part of the two part test has been met. We turn then to the second part of the test, whether the Working Group is impliedly or specifically charged to advise or to make reports, investigations, or recommendations.
Here, we find that the Working Group was in fact charged with making reports to the Sussex County Council. The County concedes that the consultant hired by the Council to facilitate the Working Group meetings "periodically makes reports to the Council" and that on September 10, 2019 the consultant "provided a presentation to the Council in open session to provide Council and the public with the Working Group progress." Finding that both parts of the two-part test have been met, we determine that the Working Group is a public body.
We turn then to your allegations regarding the Working Group's failure to comply with FOIA's open meeting requirements. First, you allege the Working Group's meeting notices were "not posted where the meetings occurred at the County's West Complex Building" but were posted "at the County Council's office location in the County's Administrative Building at 2 The Circle in Georgetown." The FOIA requires conspicuous posting of the notice of meeting. Such notice must be posted "at the principal office of the public body holding the meeting, or if no such office exists at the place where the meetings of the public body are regularly held . . . ." Here, the record is clear that the Working Group's notices were posted at the principal office of the County Council and the County Administrator. Accordingly, there is no FOIA violation in the posting of the notices.
You next challenge the sufficiency of the agendas solely because "the monthly agendas made no reference to a review and/or approval of the minutes of the meetings" in violation of the FOIA. The County concedes that minutes of the Working Group meetings have not yet been approved. Because the County has not taken an action that was not included on its agenda, we find no FOIA violation.
Finally, the Petition alleges the minutes are incomplete as they do not "identify each member's business, organization, or other affiliation nor their expertise or their role as a 'stakeholder' such as farmer, real estate developer, environmentalist, or land use expert." You assert the minutes should contain a meaningful recitation of the discussions that were had by the Working Group members. The FOIA requirements for minutes are clear that minutes must include a recitation of the members present, and how each member voted. Here, the Working Group was gathering input from a number of stakeholders across a wide berth of specialties, collecting that input, and providing reports back to the Council. There is no indication on this record that any votes were taken at these meetings and, on this record, we cannot find a violation.
Finally, the County indicates that it has now created a website for the Working Group and all past and future agendas will be posted online. This website will also include draft minutes and PowerPoint presentations, and will soon include the September 10, 2019 PowerPoint and Summary Report of the Working Group. We encourage these and any other developments that help to increase transparency.
CONCLUSION
We determine that there has been no violation of FOIA as alleged in the Petition.
Very truly yours,
/s/ Patricia A. Davis
Patricia A. Davis
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
J. Everett Moore, Jr., Esquire
Attorney for Sussex County (via email)