If an AG finds a public body improperly deliberated in closed session, can the body fix it by redoing just the deliberation instead of the whole hearing?

Official title

98-IB01A: FOIA Complaint, City of Newark, Supplemental

Plain-English summary

This is a follow-up to the AG's January 21, 1998 opinion finding that Newark's Board of Ethics violated FOIA by improperly deliberating ethics charges against a councilman in executive session. After that ruling, the City asked the AG to reconsider, and the complaining party objected to any softening of the remedy, arguing that merely having the Board deliberate again wouldn't deter future violations. The AG declined to reverse its finding that the Board violated 29 Del. C. Section 10004(b)(4) by using executive session for deliberation rather than genuine legal advice. But it agreed the original remedy, essentially a full do-over, swept more broadly than the violation required. Because the actual evidentiary hearing had been conducted properly and a verbatim transcript already existed, the AG modified its order: the Board could reconvene, using the same members who heard the original complaint, and conduct its deliberations on the record in open session based on that existing transcript, without having to reopen the evidentiary hearing to take new testimony or documents unless the Board itself chose to expand the proceeding. The rest of the January 21 opinion's findings stood.

Currency note

This opinion was issued in 1998. 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: Can a public body ask the Delaware AG to reconsider a FOIA ruling against it?
A: Yes, based on this opinion. The City of Newark asked the AG to reconsider its earlier finding, and the AG treated the request as one to determine under 29 Del. C. Section 10005 whether a further FOIA issue would arise from how the city proceeded.

Q: If a FOIA violation only affected part of a proceeding, does the whole proceeding have to be redone?
A: Not necessarily, according to this opinion. The AG found the remedy should be tailored to the actual violation, and since only the closed-door deliberation was improper, not the evidentiary hearing itself, only the deliberation needed to be redone.

Q: Does redoing a flawed deliberation require entirely new board members?
A: No. The AG allowed the same Board members who originally heard the complaint to reconvene and conduct the corrected, public deliberation based on the existing transcript.

Q: Does a party's objection to a softened remedy change the outcome?
A: Not in this case. Although the complaining parties argued a mere redeliberation was an insufficient deterrent, the AG modified its remedy anyway, reasoning that the city shouldn't be forced to repeat any step of the process that hadn't actually violated FOIA.

Background and statutory framework

Following the AG's January 21, 1998 opinion (98-IB01) that Newark's Board of Ethics violated FOIA's narrow legal-advice exception under 29 Del. C. Section 10004(b)(4) by deliberating the merits of ethics charges in executive session, the City asked the Department of Justice under 29 Del. C. Section 10005 to reconsider the remedy in light of new subpoena procedures the city had since adopted. The complaining parties objected that a mere redeliberation would not deter future violations. The AG reaffirmed the underlying violation but tailored the remedy to match it: since the evidentiary hearing itself complied with FOIA and a full verbatim transcript existed, the Board could reconvene with the same members and conduct the corrected deliberation and vote on the record in open session based on that transcript, rather than repeating the evidentiary hearing from scratch.

Citations and references

Statutes:

• 29 Del. C. Section 10004(b)(4), narrow exception for legal-advice and litigation-strategy executive sessions, the basis of the underlying violation
• 29 Del. C. § 10005, authority for the Department of Justice to determine whether a FOIA violation has occurred or will occur

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/02/20/98-ib01a-foia-complaint-city-of-newark-supplemental/

Original opinion text

Civil Division-New Castle County           February 20, 1998

AG Opinion: IB01a-98

Supplemental

Roger A. Akin, Esquire

City Solicitor

220 Elkton Road

Newark, DE 19711

Re: City of Newark FOIA

Dear Roger:

By your letter of February 19, 1998, The City of Newark has asked

whether the Department of Justice will reconsider its opinion

dated January 21, 1998 when it found that the Newark Board of

Ethics had violated the Freedom of Information Act (“FOIA”). We

found that the Board violated the restrictions governing the type

of business which can be conducted during an executive session.

As a result, we concluded that the Board would be required to

conduct a new hearing on the complaint. You have indicated that

the Board is meeting on February 20, 1998 to determine how to

proceed as a result of the finding contained in our opinion of

January 21, 1998.

After failing to reach either Ms. Or Mr. Tarrant on the 19th, I

was able to talk with both of them this morning. I faxed a copy

of your letter to Mr. Tarrant at his office this morning. Mr. and

Ms. Tarrant objected to any reconsideration of the opinion on two

grounds: first that the City has instituted new procedures which

allow for subpoenas which was not the case at the time of the

original hearing and second that to merely require that the Board

deliberate again would not be a sufficient sanction to act as

deterrent toward future FOIA violations by the city.

While I understand your desire to have the Board meet

expeditiously to resolve this issue consistent with our decision,

the Department of Justice is concerned that both parties have a

full opportunity to be heard. Since you have told me that you

want to advise the Board on the 20th in anticipation of a

proceeding to be noticed for a later date, I will consider your

request under 29 Del. C. § 10005 as one to determine whether a

FOIA violation will occur. By copy of this letter to Ms. Tarrant,

we will consider any submission she would make prior to the date

set by the Board for its reconsideration so long as it brings to

our attention relevant information which is germane to the FOIA

issue as opposed to the merits of the case or non-FOIA issues

relating to the Board’s procedures.

As discussed in the opinion of January 21st, the only FOIA

violation which occurred related to the improper use of the

executive session for purposes of deliberation. As pointed out in

your letter, the remedial action should be tailored to meet the

violation. While we recognize that remedial action may create a

burden, the city should not be required to repeat any process

which did not give rise to a FOIA violation. Since there is a

verbatim transcript of the hearing and since the Board which will

reconsider the case will be comprised of the same persons who

originally heard the complaint, we will modify our opinion of

January 21, 1998 in the following manner:

The deliberations and vote taken by the Board of Ethics were in

violation of 29 Del. C.  §10004(b)(4). The Board shall reconvene

in order to conduct deliberations based on the verbatim

transcript of the hearing provided that the members of the Board

meeting in the reconvening session are identical to the members

who originally heard the complaint on June 19, 1997. The

deliberations shall be conducted on the record in open session

consistent with the findings set forth in our opinion dated

January 21, 1998. It shall not be necessary to hold a full

evidentiary hearing merely to take evidence or introduce

documents already of record. On the other hand, the Board is free

to expand the proceeding for purposes which it deems proper and

appropriate so long as the proceeding otherwise complies with

FOIA requirements.

In all other respects, we restate and reaffirm all of the

findings and conclusions set forth in our opinion of January 21,

1998 which are not inconsistent with this letter.

Very truly yours,

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

Keith R. Brady, Chief Deputy Attorney General

Ms. Shirley Tarrant

H. Alfred Tarrant, Jr., Esquire

Ms. Chrystyna Lafferty