Does Delaware FOIA reach the Delaware River and Bay Authority's executive sessions?

Official title

20-IB08 2/25/2020 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware River and Bay Authority

Plain-English summary

The Delaware River and Bay Authority is a bi-state entity formed by interstate compact in 1962, with congressional consent. Delaware and New Jersey jointly created it to develop and operate crossings, transportation facilities, and economic-development infrastructure on the Delaware River and Bay. AP reporter Randall Chase petitioned that DRBA's December 17, 2019 executive session, held during an Economic Development Committee meeting to discuss long-range planning, was an improper executive session under Delaware FOIA.

DRBA replied that Delaware FOIA does not reach it. The Compact does not adopt either state's FOIA law, and the Compact itself bars unilateral state legislation that would impose new duties on DRBA. DRBA also has its own FOIA policy, in place since 1990.

The AG agreed with DRBA and dismissed the petition.

The opinion explains that DRBA is not a state agency of Delaware or New Jersey but holds a unique status as a bi-state entity. Such entities "occupy a significantly different position in our federal system than do the States themselves" and "typically are creations of three discrete sovereigns: two States and the Federal Government." Each state relinquishes a portion of its sovereignty to the joint entity, so a bi-state entity is not subject to unilateral control by either participating state.

The Compact does not adopt either state's FOIA law, and it is clear that "no additional duties or obligations shall be undertaken by the Authority under the law of either state or of Congress without authorization by the law of both states." The opinion states that the mere passage of similar legislation in both states is not enough to amend DRBA's obligations: the legislation must contain an express statement that the states intend to amend the Compact. Because neither state's FOIA law contains such an express amendment, and the AG was presented with no evidence of jointly-authorized legislation doing so, DRBA is not subject to Delaware FOIA.

Currency note

This opinion was issued in 2020. 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 does "bi-state entity" mean?

The opinion describes DRBA as an entity formed by Delaware and New Jersey under an interstate compact approved by Congress. It treats DRBA as a single agency of both states rather than a Delaware or New Jersey state agency.

Why can't Delaware just apply its FOIA to DRBA?

The Compact bars it. The opinion explains that each state relinquishes a portion of its sovereignty to the joint entity, so DRBA is not subject to unilateral control by either participating state. Imposing new obligations requires authorization by the law of both states.

What if both states adopted similar FOIA laws independently?

Not enough. The opinion states that the mere passage of similar legislation in both states does not amend the Compact. The legislation must contain an express statement that the states intend to amend the Compact, and neither state's FOIA law does.

Does DRBA have its own transparency rules?

According to DRBA's response described in the opinion, it adopted its own FOIA policy in 1990. The opinion does not evaluate that policy; it holds only that DRBA is not subject to Delaware FOIA and that the petition must be dismissed.

Background and statutory framework

Delaware and New Jersey formed DRBA in 1962 through an interstate compact approved by Congress, for the purpose of advancing economic growth in the areas bordering the Delaware River and Bay through the financing, development, construction, operation, and maintenance of crossings, transportation and terminal facilities, and other facilities of commerce. The Compact's authority sits on three legs: Delaware legislation, New Jersey legislation, and congressional consent.

The Compact says that “no additional duties or obligations shall be undertaken by the Authority under the law of either state or of Congress without authorization by the law of both states.” The opinion applies the cited compact cases to require an express legislative statement of intent to amend it. Footnote 13 also identifies a 2005 Delaware AG opinion that found DRBA outside the Delaware Sunshine Act.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005
• Delaware-New Jersey Compact (no additional duties without authorization by the law of both states)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/02/25/20-ib08-2-24-2020-foia-opinion-letter-to-mr-randall-chase-re-foia-complaint-concerning-the-delaware-river-and-bay-authority/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/02/Attorney-General-Opinion-No.-20-IB08.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
FAX: (302) 577-2496
KATHLEEN JENNINGS 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 20-IB08

February 25, 2020

VIA EMAIL

Randall Chase
[email protected]

RE: FOIA Petition Regarding the Delaware River and Bay Authority

Dear Mr. Chase:

We write in response to your correspondence alleging the Delaware River and Bay Authority (“DRBA”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001- 10007 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that DRBA is not subject to Delaware’s FOIA law and this Petition is dismissed.

BACKGROUND

In 1962, the states of Delaware and New Jersey formed the DRBA, entering an interstate compact agreement approved by Congress.1 The states adopted the Delaware – New Jersey Compact (“Compact”) for the purposes of “advancing the economic growth and development of those areas in both states which border the Delaware River and Bay by the financing, development, construction, operation and maintenance of crossings, transportation or terminal facilities, and other facilities of commerce, and by providing for overall planning for the future economic development of those areas.”2 In executing its duties, DRBA held an executive session at a

1
Int’l Union of Operating Eng’rs, Local 542 v. Del. River & Bay Auth., 2014 WL 1882430, at *2 (D.N.J. May 12, 2014).
2
17 Del. C. ch. 17; N.J.S.A. 32:11E-1 - 12.
December 17, 2019 Economic Development Committee meeting to discuss long range planning.3 You filed a Petition with this Office alleging that long range planning was not a proper reason to hold an executive session under Delaware’s FOIA law.

DRBA replied to your Petition on February 5, 2020 (“Response”) stating that the Petition should be dismissed because as a bi-state entity, DRBA is not subject to Delaware’s FOIA. The Compact does not expressly adopt either state’s FOIA law, and DRBA contends that it is not subject to unilateral legislation, as relevant caselaw and the language of the Compact itself do not permit any additional duties or obligations be undertaken by DRBA without the express authorization of both states. DRBA contends that neither state’s FOIA law contains a provision subjecting DRBA to its provisions nor do the FOIA statutes contain a provision demonstrating an intent to amend the Compact. Instead, DRBA states that it has adopted its own FOIA policy, which has been in place since 1990. DRBA enclosed a copy of this policy.

DISCUSSION

Before considering the merits of your claim under FOIA, we must first determine whether DRBA is subject to Delaware’s FOIA law. Only if DRBA is subject to the Delaware FOIA statute would we determine if DRBA violated the Act. For the reasons set forth below, we conclude that DRBA is not subject to Delaware’s FOIA statute.

DRBA is not considered a state agency of Delaware or New Jersey but instead holds a unique status as a bi-state entity. “Bi-state entities occupy a significantly different position in our federal system than do the States themselves” and “typically are creations of three discrete sovereigns: two States and the Federal Government.”4 These entities “exist by virtue of compacts between the states involved, entered into by their respective legislatures with approval of Congress.”5 The purpose of a bi-state entity is take action on common problems of the participating states and to advance the states’ mutual regional interests. Bi-state agencies are not an extension of each state’s authority, but they “become a single agency of government of both

3
Petition.
4
Hess v. Port Auth. Trans-Hudson, Corp., 513 U.S. 30, 40 (1994).
5
Del. River & Bay Auth. v. New Jersey Pub. Emp’t Relations Comm., 112 N.J. Super 160, 165 (N.J. App. Div. 1970).

2 states,”6 and each state relinquishes a portion of its sovereignty to this entity.7 As such, bi-state entities are not subject to the unilateral control by either participating state.8

The Compact does not adopt either state’s FOIA laws and is clear that “no additional duties or obligations shall be undertaken by the Authority under the law of either state or of Congress without authorization by the law of both states.”9 New Jersey and Delaware both have enacted FOIA laws addressing public records and public meetings, but the mere passage of similar legislation is not sufficient to amend DRBA’s obligations under the Compact.10 The states’ legislation must contain an express statement that the participating states intend to amend the Compact.11 Neither state’s FOIA law contains an express amendment to the Compact to apply one state’s FOIA law to DRBA.12 Also, we have not been presented with any evidence of other jointly-authorized legislation amending the Compact to adopt Delaware’s FOIA law. Accordingly, we determine that DRBA is not subject to Delaware’s FOIA law.

6
Id.
7
Del. River & Bay Auth. v. Carello, 222 A.2d 794, 797 (Del. Ch. 1966) (“By entering into a compact, such as the one here in issue, a state surrenders pro tanto a portion of its own sovereignty. . . .”) (citation omitted). 8 Hess, 513 U.S. at 42.
9
17 Del. C. § 1701.
10
Spence-Parker v. Del. River & Bay Auth., 616 F. Supp.2d 509, 520 (D.N.J. 2009).
11
Id. (“In short, the mere passage by New Jersey and Delaware of similar whistle-blower protection laws is not sufficient, under Local 542 and the language of the Compact at issue in this lawsuit, to apply such laws to the DRBA. Instead, such laws will apply to the Authority only ‘if the states’ legislation contains an express statement that they intend to amend the compact.’”) (quoting Int’l Union of Operating Eng’rs, Local 542 v. Del. River Joint Toll Bridge Comm’n, 311 F.3d 273, 276 (3d Cir. 2002)). 12 29 Del. C. §§ 10001 - 10007, N.J.S.A. 47:1A-1 - 13, N.J.S.A. 10:4-6 - 21.

3
CONCLUSION

As we conclude that DRBA is not subject to Delaware’s FOIA law, this Petition is dismissed.13

Very truly yours,

/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein
_______
Aaron R. Goldstein
State Solicitor

cc: Michelle Warner Hammel, Esq., Delaware River and Bay Authority

13
This decision is also in accord with Attorney General Opinion No. 05-IB27, which determined that DRBA is not subject to the Delaware Sunshine Act. Del. Op. Att’y Gen. 05-IB27, 2005 WL 3991285, *3 (Sept. 6, 2005) (“No such obligations are expressly authorized in the Compact nor do they result from any joint legislative effort of the Delaware and New Jersey legislatures.”).
4