If a county planning director allegedly tells someone by phone that a zoning condition can be waived, does that count as an illegal secret 'meeting' under Delaware's FOIA?

Official title

96-IB24: FOIA-Sussex County Council; Board of Adjustments & Planning and Zoning Office

Plain-English summary

A Seaford resident complained that the Sussex County Planning and Zoning Office let a construction company install fuel storage tanks without any public hearing, even though a 1995 Board of Adjustment ruling had specifically barred an on-site fuel storage tank as a condition of the company's special use exception. The complaint pointed to a phone call between the Director of Planning and Zoning and a third party as the source of the alleged waiver.

The Attorney General found no FOIA violation. To the extent the complaint was really about whether the Director personally exceeded his authority in that phone call, that question is about internal agency authority, not about whether a public body held an improperly closed meeting, so it fell outside the Attorney General's jurisdiction under the Act. And to the extent the complaint alleged that some public body, the County Council, the Board of Adjustment, or the Planning and Zoning Commission, had actually met and voted to rescind the fuel-tank prohibition, the record showed the opposite: no such body had taken any action since the original 1995 ruling, and the county was still actively investigating and monitoring the site for compliance with the original condition. Because no "meeting" as the Act defines it ever happened, there was nothing for FOIA to have required notice or minutes for.

Currency note

This opinion was issued in 1996. 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: If a resident believes a zoning official quietly waived a permit condition in a phone call, is that a FOIA violation?
A: Not under this opinion, at least not on its own. The AG treated a single official's phone conversation as a question about whether that person exceeded their individual authority, which is outside FOIA's scope; FOIA covers meetings of public bodies, not one official's private conversation.

Q: Does the Attorney General's FOIA complaint process decide whether a county employee acted within their authority?
A: No. The opinion made clear that allegations a director exceeded his authority are not addressed in a FOIA determination, since that question doesn't concern whether a public body's meeting was properly open and noticed.

Q: What evidence does the Attorney General look for before finding that an illegal secret decision was made?
A: The opinion relied on the county's confirmation that no public body had met or taken any action on the disputed condition since the original ruling, and that the county was still investigating and monitoring the site, to conclude no meeting or decision had occurred at all.

Background and statutory framework

The complaint referenced In re Edward J. Kaye, Case No. 5780-1995 (Board of Adjustment, Nov. 8, 1995), which had granted a special use exception for an asphalt batching recycling operation on the condition that fuel be stored only in equipment tanks, with no separate on-site fuel storage tank. The complainant alleged a June 6, 1996 phone call between the Director of Planning and Zoning and a third party amounted to waiving that condition without public process. Applying 29 Del. C. Section 10002(a)'s definition of "public body" and the open-meeting requirements of 29 Del. C. Section 10004(a), (e)(2), and (e)(4), the AG found no evidence any public body had held a meeting or made a decision on the matter since the 1995 ruling, based on the county attorney's confirmation and the Director's own statement that an investigation into the site remained ongoing. The allegation that the Director personally exceeded his administrative authority was found outside the Attorney General's jurisdiction under 29 Del. C. Section 10005(e), which reaches FOIA violations by public bodies, not internal questions of an individual official's authority.

Citations and references

Statutes:

• 29 Del. C. Section 10002(a), definition of "public body"
• 29 Del. C. Section 10004(a), general open-meetings requirement
• 29 Del. C. Section 10004(e)(2), public notice and agenda requirements
• 29 Del. C. Section 10004(e)(4), posting-location requirements for public notice
• 29 Del. C. Section 10005(e), scope of the Attorney General's FOIA investigation and enforcement authority

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/07/09/96-ib24-foia-sussex-county-council-board-of-adjustments-planning-and-zoning-office/

Original opinion text

Civil Division – New Castle County

July 9, 1996

Del. Op. Atty. Gen. 96-IB24 (Del.A.G.), 1996 WL 517409

( determining that (a) AG lacked jurisdiction over whether director of planning and zoning exceeded his authority and (b) public bodies did not violate FOIA’s open meeting requirements where there was no proof that a meeting was held with respect to special use exception )

Ms. Mattie Burton

RD 525

RD 4, Box 348 A

Seaford, DE 19973

Re: Freedom of Information Act Complaint

against Sussex County Council, Board of

Adjustment, and Planning and Zoning Office

Dear Ms. Burton:

Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred or is about to occur.

On June 17, 1996 we received your letter of complaint dated June 10, 1996. By letter dated June 18, 1996, we asked the Sussex County Council (the “Council”) to respond to your allegation of a violation of FOIA. By letter dated June 28, 1996, the attorney for the Council responded, which letter he copied to you.

Your complaint states that the Sussex County Planning and Zoning Office (“Planning and Zoning Office”) gave “the okay or amendment” to Kaye Construction “to install fuel storage tanks for his operation,” and that this “was done without a public forum or opportunity for comment from the public.”

You refer to a decision of the Board of Adjustment of Sussex County (“Board of Adjustment”), In re Edward J. Kaye, Case No. 5780-1995 (Nov. 8, 1995). In that decision, the Board of Adjustment considered an application, with conditions, for a special use exception to operate an asphalt batching recycling plant. Although the Board of Adjustment granted the application, it reaffirmed a previous decision by the Council prohibiting the use of a separate fuel storage tank. Specifically, the Board of Adjustment decision provides that “[t]he applicant shall utilize fuel tanks on the equipment only, and that there be no fuel storage tank on-site.”

The Pertinent Statutes

29 Del. C. Section 10002(a):

“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division 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 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.

29 Del. C. Section 10004. Open meetings.

(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.

. . .

(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; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.

. . .

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice 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, and making a reasonable number of such notices available.

Opinion

You do not allege in your complaint that the Planning and Zoning Office, which is a “public body,” held a meeting which FOIA requires to be noticed and open to the public. You suggest, rather, that Mr. Lawrence B. Lank, Director of Planning and Zoning, made a decision to waive the condition of the special use exception and permit the installation of a fuel storage tank. You base that allegation on a telephone conversation on June 6, 1996 between Mr. Lank and Mr. James West of Bridgeville, Delaware.

To the extent your allegation goes to whether Mr. Lank exceeded his authority as Director of the Planning and Zoning Office, the Attorney General’s Office does not have jurisdiction over that matter under FOIA, and therefore we do not address it in this written determination.

If you are alleging that the Planning and Zoning Office, the Board of Adjustment, or some other public body held a meeting, at which time it decided to rescind the prohibition against a fuel storage tank, the facts appear to the contrary. The attorney for the Council spoke with Mr. Lank, who assured “that neither the Sussex County Council, the Sussex County Board of Adjustment, nor the Sussex County Planning & Zoning Commission have taken any action subsequent to November 8, 1995, with respect to Case No. 5780. There has been no meeting of members of any public body of Sussex County with respect to these allegations, and there likewise has been no decision by the members of any public body of Sussex County with respect to this issue.”

Indeed, in his letter to you dated June 7, 1996, Mr. Lank confirmed that “[a]n investigation into the Kaye Construction site is on-going and will continue to be monitored.” As part of that monitoring process, Mr. Lank has already warned Mr. Kaye that any fuel tank must be a primary part of the operation of the equipment on the premises, and not permanently on-site.

Based on our review of your complaint, the documents provided to us, and the response of the attorney for the Council, we conclude that there has not been a violation of FOIA.

I note in your letter of June 13, 1996 that you “have obtained an attorney, Mr. John A. Sergovic, Jr., 9 North Front St, Georgetown, DE 19947, to advise us legally in this matter.” Any legal remedies that may be available to allay your concerns regarding the Kaye Construction property should be addressed to your private attorney.

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: Peter B. Jones, Esquire

John A. Sergovic, Jr., Esquire

Elizabeth A. Bacon, Opinion Administrator