Does a city's advisory board have to give public notice of its meetings even if it hasn't taken any formal action yet?

Official title

97-IB22: FOIA Complaint Against City of Wilmington

Plain-English summary

A resident complained that Wilmington's Residency Review Board, a small board created to enforce the city's rule that city employees must live in Wilmington, held five meetings between December 1996 and September 1997 without ever posting public notice or an agenda, and that the Board failed to keep minutes. The city admitted it hadn't posted notice for any of the five meetings, but argued this didn't matter because the Board hadn't formally adopted any policies or decided any individual case yet. The AG rejected that defense. FOIA's open-meeting requirements apply to any meeting where a public body discusses public business, not only to meetings where the body takes a final vote; otherwise a board could hold all its real deliberation behind closed doors and just rubber-stamp the outcome in public later. Because the Residency Review Board discussed substantive matters like how to define "residency," how to enforce the rule against current employees, and specific problem situations, all without giving the public any chance to attend, the AG found this was not a minor technical slip but a violation touching substantial public rights. On the minutes issue, however, the city was in the clear: it had produced written minutes for all five meetings that met FOIA's content requirements. As a remedy, the AG ordered the Board to hold a properly noticed special meeting within 30 days, summarize what was discussed at the five closed-door meetings, take public comment, and then vote in the open to adopt or ratify anything it had already decided.

Currency note

This opinion was issued in 1997. 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: Does an advisory board or committee have to follow the same open-meeting notice rules as a city council?
A: Yes, according to this opinion. FOIA's definition of "public body" covers boards, committees, and similar bodies charged with advising or making recommendations, and the AG found Wilmington's Residency Review Board fit that definition even though it wasn't the city council itself.

Q: If a board hasn't voted on anything yet, does FOIA still require public notice of its meetings?
A: Yes. The AG found it irrelevant that the Board hadn't taken "formal" action, holding that FOIA's open-meeting requirement covers meetings where public business is discussed, not just meetings where a final decision is made.

Q: Is failing to keep minutes the same violation as failing to give notice of a meeting?
A: No, they're separate requirements. The AG found Wilmington's Board had properly kept minutes of its meetings even while it had failed, separately, to give the public notice that the meetings were happening at all.

Q: What happens when a board has been meeting in secret for months without formal notice?
A: In this opinion, the remedy was forward-looking: the AG ordered the Board to hold a new, properly noticed special meeting to summarize its past discussions publicly and then vote in the open to ratify anything it wanted to keep in place.

Background and statutory framework

The Residency Review Board was created by city ordinance to administer and enforce Wilmington's residency requirement for city employees, making it a "public body" under 29 Del. C. Section 10002(a)'s definition covering any board or committee charged with advising or making recommendations for another public body. Applying Section 10004(e)(2) and (e)(4)'s notice and posting requirements, the AG relied on The News-Journal Co. v. McLaughlin for the principle that FOIA's open-meeting rules apply to meetings where public business is discussed, not only where formal action is taken, and on Levy v. Board of Education of Cape Henlopen School District for the same point in the context of school board workshops. Because the Board's undisclosed discussions of residency enforcement standards involved "substantial public rights" rather than a merely technical lapse, per the standard from Ianni v. Department of Elections of New Castle County, the AG ordered a properly noticed special meeting, followed by "full public discussion" in the sense described in Beebe Medical Center v. Certificate of Need Appeals Board, after which the Board could ratify its prior decisions. On the separate minutes requirement of Section 10004(f), the AG found no violation because the city had produced adequate written minutes for all five meetings.

Citations and references

Statutes:

• 29 Del. C. Section 10002(a), definition of "public body" covering advisory boards and committees
• 29 Del. C. Section 10004(e)(2), seven-day advance notice requirement for meetings and agendas
• 29 Del. C. Section 10004(e)(4), requirement of conspicuous posting of meeting notice
• 29 Del. C. Section 10004(f), requirement to maintain and make public minutes of meetings

Cases:

• The News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977), on FOIA covering meetings to discuss public business, not just meetings to take action
• Levy v. Board of Education of Cape Henlopen School District, 1990 WL 154147 (Del. Ch. Oct. 1, 1990), on FOIA applying to workshops even absent formal action
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), on distinguishing substantial-rights violations from technical ones
• Beebe Medical Center v. Certificate of Need Appeals Board, 1995 WL 465318 (Del. Super. June 30, 1995), on the "full public discussion" remedy standard

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/11/24/97-ib22-foia-complaint-against-city-of-wilmington/

Original opinion text

November 24, 1997

New Castle County – Civil Division

Jeffrey M. Weiner, Esquire

1332 King Street

Wilmington, DE 19801

RE: Freedom of Information Act Complaint

Against City of Wilmington

Dear Mr. Weiner:

This letter is our written determination in response to your

complaint alleging that the City of Wilmington (the “City”)

violated the Freedom of Information Act, 29 Del. C. Sections

10001-10005 (“FOIA”).

Your letter of complaint dated October 4, 1997 was received by

this Office on October 8, 1997. By letter dated October 9, 1997,

we asked for the City’s response within ten days to your

allegations that the City had violated the open meeting

requirements of FOIA. By letter dated October 17, 1997, the City

asked for a five-day extension of time, which we granted.

In your letter, you alleged that the City had violated FOIA in

two ways: first, by holding meetings of the Residency Review

Board without notice to the public; and second, by failing to

maintain minutes of those meetings.

By letter dated October 24, 1997, we received a response from the

City Solicitor. By letter dated October 28, 1997, we asked the

City for additional information and documents relating to the

FOIA complaint. By letter dated October 30, 1997, the City

provided us with that information. The City confirmed that the

first meeting of the Residency Review Board was held on December

23, 1996. The City also stated “that public notice of the

meetings and agenda were not posted for the five meetings of the

Board.”

Summary of the Law

Section 10004 of Title 29 of the Delaware Code provides that

“[e]very meeting of all public bodies shall be open to the

public” except as authorized by statute for executive session. A

“public body” is defined to include any “board, commission,

department, agency, committee, ad hoc committee, special

committee, temporary committee, advisory board and committee,

[or] subcommittee” appointed by any body which is “impliedly or

specifically charged” by another public body “to advise or to

make reports, investigations or recommendations.” 29 Del. C.

Section 10002(a).

Section 10004(e)(2) provides: “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; . . . .” Section 10004(e)(4) requires that

notice “shall include, but not be limited to, conspicuous posting

of said notice at the principal place of the public body holding

the meeting, . . . .”

Section 10004(f) requires every public body to “maintain minutes

of all meetings, including executive sessions, conducted pursuant

to this section, and shall make such minutes available for public

inspection and copying as a public record. Such minutes shall

include a record of those members present and a record, by

individual members (except where the public body is a town

assembly where all citizens are entitled to vote), of each vote

taken and action agreed upon.”

The City does not dispute that the Residency Review Board is a

“public body” for purposes of FOIA. The Board was appointed by a

public body (the City Council) to oversee the administration and

enforcement of the law requiring City employees to be Wilmington

residents.

Discussion and Findings

On March 2, 1995, the City Council enacted an ordinance to amend

Chapter 2 of the City Code of 1993 to create a Residency Review

Board “to review any matters of residency requirement

administration and enforcement that may arise.” The Residency

Review Board consists of the City Solicitor, the Director of

Personnel, and Administrative Assistant to the Mayor, and two

residents of the City “who shall not be City employees, who shall

be qualified electors of the City and who shall be appointed by

the Mayor” and “confirmed by resolution approved by a majority of

all members of Council.”

The City Council did not approve the appointments of all of the

members of the Residency Review Board until August 15, 1996. The

Board held its first meeting on December 23, 1996. Subsequent

meetings were held on January 14, March 6, May 13, and September

9, 1997.

In its response to your FOIA complaint, the City provided us with

copies of the minutes for those five meetings of the Residency

Review Board. Your concern that the City violated FOIA by failing

“to maintain minutes of all meetings” therefore is unfounded.

The City has confirmed “that public notice of the meetings and

agenda were not posted for the five meetings and notified Board

members.” The City contends, however, that “regarding the five

meetings in question, no policies and procedures were adopted,

and no individual case was discussed or decided. Therefore, while

there may have been an unintentional failure to provide public

notice in the past, to date no formal action has been taken by

the Board.”

The Chancery Court has rejected the notion that the open meetings

requirements of FOIA apply only “to meetings where ‘formal

action’ was taken. Our law is not so limited. Rather it applies

to meetings called to discuss public business as well as to

meetings called to take action on public business.” The

News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362

(1977) (Brown, V.C.). This is because the purpose of the

“sunshine laws is to prevent at nonpublic meetings the

crystallization of secret decisions to a point just short of

ceremonial acceptance, that rarely could there be any purpose to

a nonpublic pre-meeting conference except to conduct some part of

the decisional process behind closed doors, and that a sunshine

statute, being for the benefit of the public, should be construed

so as to frustrate all such evasive devices.” Id.

Clearly, the Residency Review Board discussed matters of public

business at its five meetings. Among other things, the Board

discussed: the legal definition of “residency”; the need for more

vigorous enforcement; current problem situations; the criteria

for determining whether a City employee is a resident; procedures

for determining the residency of current and new City employees;

and actual steps to enforce the residency requirement. The City

residency requirement is a matter of widespread public concern.

In fact, a bill to abolish the residency requirement was

introduced, but not passed, in the last session of the General

Assembly. Despite a keen public interest in this issue, the City

did not give the public any notice that the Board was meeting,

and thus give the public an opportunity to attend the meetings

and participate in the political process.

It is irrelevant whether the Board has yet to take any “formal”

action concerning the application and enforcement of the

residency law. In Levy v. Board of Education of Cape Henlopen

School District, Del. Ch., 1990 WL 154147 (Oct. 1, 1990)

(Chandler, V.C.), the Chancery Court held that FOIA applied to

school board “workshops,” even where no formal action was taken.

Under any other interpretation, “there would be no remedy to

deter Board members from privately meeting for discussion,

investigation or deliberation about public business as long as

the Board reached no formal decision at that private meeting.”

1990 WL 15417, at p. 6. FOIA “recognizes that policy decisions by

public entities cannot realistically be understood as isolated

instances of collective choice, but are best understood as a

decisional process based on inquiry, deliberation and consensus

building. Because informal gatherings or workshops are part of

the decision-making process they too must be conducted openly.”

Id.

We find that the City violated the open meeting requirements of

FOIA by failing to post notices and agenda for the five meetings

of the Residency Review Board. The City Council has charged the

Board with an important function: to set the standards and create

procedures for enforcement of the City’s residency law, and to

make final decisions regarding the administration and enforcement

of the requirements of that law. The Board’s activities therefore

could have considerable impact on individual City employees.

Failure to post notices and agenda before the Board’s meetings

involved “substantial public rights” and was not merely a

“technical” violation. Ianni v. Department of Elections of New

Castle County, Del. Ch., 1986 WL 9610, at p. 6 (Aug. 29, 1986)

(Allen, C.). To remedy these violations of the open meeting law,

we direct the Residency Review Board to notice a special meeting

within thirty days of the date of this letter. At that special

meeting, the Board should discuss, at least in summary form, the

principal matters discussed at its previous five meetings, and to

give proper notice of that special meeting to the public so that

interested citizens can attend and comment. At that time, after

“full public discussion,” Beebe Medical Center v. Certificate of

Need Appeals Board, Del. Super., 1995 WL 465318, at p. 6 (June

30, 1995) (Terry, J.), the Board can publicly vote to adopt or

ratify any actions previously taken.

The City is put on notice that the open meeting requirements of

FOIA will be strictly construed and enforced by this Office. Any

future failure by the Residency Review Board to comply with FOIA

could be determined to be evidence of a wilful pattern of FOIA

violations.

Conclusion

Based on the complaint, the City’s written responses, and the

documents and other information provided to us, we determine that

the City’s Residency Review Board violated the open meeting

requirements of FOIA by failing to post notices and agenda for

five of its meetings. We determine that the Board maintained

minutes of each of those meetings, and therefore did not violate

Section 10004(f) of FOIA. The City is directed to take the

remedial steps outlined above.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Keith R. Brady, Esquire

Chief Deputy Attorney General

Jeffrey M. Weiner, Esquire

Chrystyna Lafferty

Opinion Coordinator