Is the Delaware Board of Bar Examiners subject to the state's Freedom of Information Act?

Official title

95-IB01: RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Plain-English summary

In 1995, a man who had sat for the Delaware bar exam filed a Freedom of Information Act complaint against the Board of Bar Examiners, seeking years of records on petitions filed under Board Rule 21 and Delaware Supreme Court Rule 52(f), plus specifics about how his own petition had been handled. The Attorney General's office concluded the Board did not have to turn over any of it, because the Board was not a "public body" covered by FOIA at all.

The opinion reasoned that the Board was a de facto arm of the Delaware Supreme Court, created under the Court's constitutionally exclusive power to regulate admission to the bar. FOIA's definition of "public body" listed boards, commissions, and committees created by the General Assembly, but never mentioned courts or the judicial branch. The AG treated that silence as intentional rather than an oversight, reasoning that forcing a court-created bar-admissions arm to comply with FOIA's public notice, agenda, and minute-keeping requirements would functionally subject judicial-branch functions to legislative procedural rules, raising separation-of-powers problems. The opinion also noted that Delaware courts had already required a bar applicant alleging Board impropriety to clear a threshold showing before ordering any discovery into Board records, a bar the complainant's general request did not meet.

Currency note

This opinion was issued in 1995. 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: Was the Delaware Board of Bar Examiners covered by the state's public records law in 1995?
A: No. The opinion found the Board fell outside FOIA's definition of "public body" because it operated as a de facto arm of the Delaware Supreme Court under the Court's exclusive constitutional authority over bar admissions.

Q: Why didn't FOIA's list of boards, commissions, and agencies created by the General Assembly cover the Board?
A: FOIA's "public body" definition never mentioned "court" or "judicial branch." The AG treated that omission as intentional, reasoning that applying FOIA's meeting-notice and record-keeping rules to a court-created board would intrude on the judiciary's separation-of-powers authority over its own bar-admission process.

Q: Could a bar applicant use FOIA to get the Board's files on other applicants' petitions?
A: Under this opinion's reasoning, no, not through FOIA, since the Board wasn't a public body under the Act. The opinion also noted Delaware courts required a threshold showing of impropriety before ordering any discovery into Board proceedings, a bar the complainant here had not met.

Background and statutory framework

FOIA's "public body" definition, amended in 1985 following the Delaware Supreme Court's decision in Delaware Solid Waste Authority v. News Journal, 480 A.2d 628 (Del. 1984), covered entities "established by an act of the General Assembly" that were "supported...by public funds" or that "expend[ed]...public funds." This office had already concluded in a separate 1994 opinion that the Delaware courts themselves fell outside the Act because they were created by the state constitution, not the General Assembly. The Delaware Supreme Court had described the Board of Bar Examiners as an arm the Court created under its inherent, exclusive power to regulate the practice of law, citing In Re: Reardon, 378 A.2d 614 (Del. 1977), and had reaffirmed the judiciary's exclusive authority over bar admissions in In Re: Infotechnology, 582 A.2d 215 (Del. 1990), and In Re: Nenno, 472 A.2d 815 (Del. 1983). The opinion applied ordinary statutory-construction canons, citing Rodney Square Inv'rs v. Bd. of Asses., 448 A.2d 237 (Del. 1982), and Asplundh Tree Expert Co. v. Clark, 369 A.2d 1084 (Del. Super. 1975), and the separation-of-powers doctrine recognized in Opinions of the Justices, 380 A.2d 109 (Del. 1988). Separately, the opinion noted that a distinct line of cases, In Re: Zeigler (Del. Jan. 3, 1994) and In Re: Petty, 410 A.2d 1021 (Del. 1980), required a bar applicant to make a threshold showing of impropriety before a Delaware court would order discovery into Board records, and distinguished In Re: Rubenstein, 637 A.2d 1131 (Del. 1994), an Americans with Disabilities Act case that never addressed whether the Board was a FOIA "public body."

Citations and references

Statutes:

• 29 Del. C. § 10002(a), definition of "public body"
• 29 Del. C. § 10005(e), FOIA complaint and enforcement procedure
• 29 Del. C. Ch. 100, Delaware's Freedom of Information Act
• 29 Del. C. § 10004(e)(2), agenda requirements that would have applied if the Act covered the Board
• 29 Del. C. § 10004(f), minutes requirements that would have applied if the Act covered the Board

Cases:

• Delaware Solid Waste Authority v. News Journal, 480 A.2d 628, 632 (Del. 1984), basis for the 1985 amendment to the "public body" definition
• In Re: Reardon, 378 A.2d 614, 615 n.1 (Del. 1977), Board of Bar Examiners established as "an arm" of the Delaware Supreme Court
• In Re: Infotechnology, 582 A.2d 215, 220 (Del. 1990), Supreme Court's exclusive responsibility over bar governance
• In Re: Nenno, 472 A.2d 815, 819 (Del. 1983), separation-of-powers basis for the Court's exclusive bar-admission authority
• Rodney Square Inv'rs v. Bd. of Asses., 448 A.2d 237 (Del. 1982), statutory construction avoiding absurd results
• Asplundh Tree Expert Co. v. Clark, 369 A.2d 1084 (Del. Super. 1975), statutory construction avoiding absurd results
• Opinions of the Justices, 380 A.2d 109, 113 (Del. 1988), separation of powers as a fundamental part of Delaware law
• In Re: Zeigler, No. 438, 1994 (Del. Jan. 3, 1994), threshold showing required before discovery into Board records
• In Re: Petty, 410 A.2d 1021 (Del. 1980), threshold showing required before discovery into Board records
• In Re: Rubenstein, 637 A.2d 1131 (Del. 1994), ADA case that did not address the Board's FOIA status

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/01/18/95-ib01-re-freedom-of-information-act-complaint-29-del-c-§-10005e/
• Original PDF: not linked from landing page

Original opinion text

January 18, 1995

Del. Op. Atty. Gen. 95-I001 (Del.A.G.), 1995 WL 794526

( determining that Board of Bar Examiners is not a “public body” for purposes of FOIA because Board is a de facto arm of the Supreme Court )

Mr. John M. Murray

PO Box 143

Georgetown, DE 19947

Donald E. Reid, Esquire

Secretary, Board of Bar Examiners

State of Delaware

200 West 9th Street, Suite 300-B

Wilmington, DE 19801

RE: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

Dear Gentlemen:

This is the decision on the above-referenced complaint.

The operative facts are that on November 5, 1994 John M. Murray (the “complainant”), filed a complaint pursuant to 29 Del . C . §10005(e) with this office. The complainant enclosed therewith copies of various correspondence (the “correspondence”) to the Board of Bar Examiners (the “Board”). The complainant sought the following information from the Board which he contends is a public body within the meaning of 29 Del . C . §10002 of the Freedom of Information Act (the “Act”):

“A list from 1970 to present by year, of the number of petitions filed, granted and denied pursuant to Board Rule 21 (and/or its predecessor rule) and Supreme Court Rule 52(f)(and/or its predecessor rule);

A copy of each petition granted from 1970 to present.”

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The complainant stated that the Board has denied his informal request for information. In his November 15, 1994 complaint the complainant requested the following information:

“1. How many petitions were filed with the Board?

2. How many petitions did the Board review on November 16, 1994?

3. What type of review process does the Board use to review petitions?

4. What type of review did my petition receive?

5. What basis did the Board use to grant or deny my petition?”

Subsequent to receiving the complaint this office requested and the parties complied with an informal letter memoranda briefing schedule. For the reasons which follow, this office finds that the Board is not a public body within the meaning of 29 Del . C . §10002(a) and therefore it does not fall within the provisions of the Freedom of Information Act, 29 Del . C . Ch. 100.

The Board correctly points out that the definition of public body as it appears in 29 Del . C . §10002 was amended as a result of the Delaware Supreme Court’s decision in Delaware Solid Waste Authority v. News Journal , Del. Supr., 480 A.2d 628, 632 (1984). The definition of public body as it appears in the current version of §10002(a) is as follows:

§10002. Definitions.

(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including , but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, 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, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or

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specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.

The amendment in 1985 to §10002(a) by the General Assembly changed the definition of “public body” to expressly include all standing committees established, appointed or empowered by public bodies. Applying plain rules of statutory construction to the provisions of 29 Del . C . §10002, this office has already ruled in Attorney General Opinion No. 94- IO11 (March 7, 1994) that it believes the Delaware courts are outside the scope of the Act because, inter alia , the courts are established by the Constitution and not by the General Assembly (Op. at 2). Attorney General Opinion No. 94-IO11 held that court records such as the data base of the administrative office of the Court are not subject to the Act even though the administrative office of the Court was created by the General Assembly. As pointed out in In Re: Reardon , Del. Supr., 378 A.2d 614, 615 n.1 (1977) the Board was established by the Delaware Supreme Court as “an arm” under its [exclusive] “inherent power to regulate the practice of law.” Id .

To go one step further, established case law in Delaware is that it is a “[f]undamental constitutional privilege that this Court, alone, has sole and exclusive responsibility over all matters affecting governance of the bar.” In Re: Infotechnology , Del. Supr., 582 A.2d 215, 220 (1990) (Board opening memorandum at 5). This power derives from the doctrine of separation of powers. See e.g., In Re: Nenno , Del. Supr., 472 A.2d 815, 819 (1983).

Even if this office were to apply a statutory construction analysis, outside established case authority, this office believes the Board falls outside the definition of “public body” in 29 Del . C . §10002(a). First, based upon existing case law enumerating above, the board is “an arm” of the Supreme Court. Second, conspicuously absent from the definition of “public body” contained in §10002(a) are the words “court” or “judicial branch”. Although the General Assembly apparently failed to expressly exclude the courts and/or judicial branch in its definition in §10002(a) (like the General Assembly), we do not believe the Act applies for several reasons. A fundamental rule of statutory construction is that in construing a statute the objective is to render a “sensible and practical meaning, not an absurd or unreasonable result.” Rodney Square Inv’rs v. Bd. of Asses, etc. , Del. Supr., 448 A.2d 237 (1982); Asplundh Tree Expert Co. v. Clark , Del. Super., 369 A.2d 1084 (1975). If the Act were to apply to the Courts, or any arm of the courts,

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the Delaware courts would have to comply with all provisions of the Freedom of Information Act, 29 Del . C . Ch. 100, including the public notice provisions; (§10004); minute keeping (§10004(f)); preparing agendas (§10004(e)(2)); and maintaining minutes of executive sessions (§10004(f)). This office believes the Courts could not function in this capacity and we do not believe the General Assembly intended the Board to comply with the Act’s notice and record keeping requirements. [1]

The Board also asserts in its memorandum that the doctrine of separation of powers bars this office from concluding that the Act applies to the Board because holding the Board subject to the Act would be unconstitutionally intruding upon the judicial branch of the Government. This office agrees and case law clearly supports the conclusion that the Supreme Court has the exclusive right to govern admissions of persons to the Delaware Bar. In Re: Nenno , Del. Supr., 472 A.2d 815, 819 (1983). Inherent in that right is the Supreme Court’s exclusive right to govern admission and to establish rules and procedures relating to the admission of the bar. See , e.g. Delaware Constitution , Art. IV, §1 and §13. The Board is a de facto arm of the Supreme Court and has the inherent right to set rules governing the Board and Bar admission process. Under Board of Bar Examiners Rule 52, which does, in fact, list certain exceptions, the Board is required to “keep confidential all information, documents and Board meetings or hearings concerning persons who apply for admission to the Bar.” Id . We therefore find that there may be an inherent intrusion upon the Supreme Court’s exclusive authority to establish their own procedures and govern the admission to the Bar if the Board was required to comply with the provisions of the Act enumerated above. See , e.g. Opinions of the Justices , Del. Supr., 380 A.2d 109, 113 (1988) (the doctrine of separation of powers is a fundamental part of Delaware law).

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Before concluding we must note that the Delaware Supreme Court has addressed, on a limited basis, the discovery issue which Mr. Murray’s complaint seeks this office to review pursuant to 29 Del . C . §10005(e). The Supreme Court has previously ruled that there must be a threshold inquiry by an applicant who has taken the bar exam establishing some impropriety by the Board before any discovery order is granted. See , In Re: Zeigler , Del. Supr., No. 438, 1994, Del. Lexus (January 3, 1994); In Re: Petty , Del. Supr., 410 A.2d 1021 (1980). The Supreme Court did not address the discovery context beyond this threshold in these case decisions. In this matter, however, Mr. Murray does not allege or assert in his complaint any impropriety on behalf of the Board which would meet the Supreme Court’s requirements outlined in Zeigler or Petty .

Since we find that the Board does not come within the purview of the Act, we find no violation of the Act in not producing the instant records listed in Mr. Murray’s complaint. The complainants appeal rights are outlined in the Act in 29 Del . C . §10005(e). [2]

Sincerely,

John K, Welch

Deputy Attorney General

JKW/jb

APPROVED

Michael F. Foster

State Solicitor

[1] The Supreme Court in In Re: Rubenstein , Del. Supr., 637 A.2d 1131 (1994) addressed the issue whether the Board was a “public entity” within the meanings of the Americans with Disabilities Act. At no time did the Board address the issue of whether it was a “public body” within the meaning of the Freedom of Information Act, 29 Del . C . §10002(a). We agree with the Board that this Federal Statute and its inherent regulations did not address, within a Freedom of Information context, whether the Board of Bar Examiners was a public body.

[2] Since the Attorney General has also ruled out that it believes the Board is not a “public body” under 29 Del . C . §10002(a), it finds it unnecessary and declines to address Argument three in the Board’s December 8, 1994 letter memorandum and reply memorandum.