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 Supreme Court's 1994 Hess v. Port Auth. Trans-Hudson decision establishes that bi-state entities "occupy a significantly different position in our federal system than do the States themselves." They are creatures of three sovereigns: two states and the federal government. The Compact between Delaware and New Jersey expressly states 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 Third Circuit's Local 542 decision (2002) and the District of New Jersey's Spence-Parker decision (2009) both held that parallel state legislation, even on the same topic, does not amend the Compact. Both states must enact express compact-amendment language to subject DRBA to a state-law regime. Neither state's FOIA law contains an express amendment to the Compact, and the AG had no record of any joint legislation doing so.
The AG also pointed to its own 2005 opinion, AG 05-IB27, which had reached the same result for the Delaware Sunshine Act. That earlier opinion held DRBA was not subject to the Delaware Sunshine Act.
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?
An organization formed by interstate compact between two states with congressional approval. The Port Authority of New York and New Jersey, the Delaware River Joint Toll Bridge Commission, and DRBA are all examples. They are creatures of joint state action plus federal consent, not of either state alone.
Why can't Delaware just apply its FOIA to DRBA?
The Compact bars it. By entering the Compact, each state surrendered some sovereignty to the joint entity. Imposing new state-law obligations unilaterally would breach the Compact. Carello (Del. Ch. 1966) put the principle in plain terms: "By entering into a compact, such as the one here in issue, a state surrenders pro tanto a portion of its own sovereignty."
What if both states adopted similar FOIA laws independently?
Not enough. The 2002 Third Circuit decision in Local 542 held that parallel passage of similar laws is insufficient unless the legislation contains an express statement of intent to amend the Compact. Spence-Parker applied the same rule to New Jersey and Delaware whistleblower statutes; neither state had used express amendment language, so DRBA was outside both.
Does DRBA have its own transparency rules?
Yes. DRBA has had its own FOIA policy since 1990. It is not subject to Delaware FOIA, but it has voluntarily adopted disclosure rules. The opinion does not evaluate those rules; it only holds that Delaware's AG petition process cannot enforce them.
Are there any DRBA records I can get under Delaware FOIA?
Not through the Delaware AG petition process. Records you might be able to get from a Delaware state agency that interacts with DRBA could fall under Delaware FOIA if those agency records are themselves public. But DRBA's own internal records are governed by DRBA's own policy.
Background and statutory framework
The Delaware-New Jersey Compact, codified in 17 Del. C. ch. 17 and N.J.S.A. 32:11E-1 to -12, created DRBA to operate the Delaware Memorial Bridge, the Cape May-Lewes Ferry, and certain other transportation and economic-development facilities. The Compact's authority sits on three legs: Delaware legislation, New Jersey legislation, and congressional consent.
The Compact's structural rule, 17 Del. C. § 1701, is the source of the unilateral-amendment bar: "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." Both states would need to enact aligned legislation expressly amending the Compact to add new obligations.
Federal courts and state courts have consistently applied this rule. The Third Circuit's Local 542 v. Delaware River Joint Toll Bridge Commission (2002) is the leading authority on the express-amendment requirement. The District of New Jersey's Spence-Parker extended that to a whistleblower context.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10005
- 17 Del. C. ch. 17, § 1701 (Compact)
- N.J.S.A. 32:11E-1 to -12 (NJ side of Compact)
- N.J.S.A. 47:1A-1 to -13 (NJ Open Public Records Act)
- N.J.S.A. 10:4-6 to -21 (NJ Open Public Meetings Act)
- Hess v. Port Auth. Trans-Hudson, Corp., 513 U.S. 30 (1994)
- Del. River & Bay Auth. v. New Jersey Pub. Emp't Relations Comm., 112 N.J. Super 160 (N.J. App. Div. 1970)
- Del. River & Bay Auth. v. Carello, 222 A.2d 794 (Del. Ch. 1966)
- Spence-Parker v. Del. River & Bay Auth., 616 F. Supp. 2d 509 (D.N.J. 2009)
- Int'l Union of Operating Eng'rs, Local 542 v. Del. River Joint Toll Bridge Comm'n, 311 F.3d 273 (3d Cir. 2002)
- Int'l Union of Operating Eng'rs, Local 542 v. Del. River & Bay Auth., 2014 WL 1882430 (D.N.J. May 12, 2014)
- Del. Op. Att'y Gen. 05-IB27, 2005 WL 3991285 (Sept. 6, 2005)
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
PRINT VERSION: Attorney General Opinion No. 20-IB08
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB08
February 25, 2020
VIA EMAIL
Randall Chase
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. 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." In executing its duties, DRBA held an executive session at a December 17, 2019 Economic Development Committee meeting to discuss long range planning. 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." These entities "exist by virtue of compacts between the states involved, entered into by their respective legislatures with approval of Congress." 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 states," and each state relinquishes a portion of its sovereignty to this entity. As such, bi-state entities are not subject to the unilateral control by either participating state.
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." 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. The states' legislation must contain an express statement that the participating states intend to amend the Compact. Neither state's FOIA law contains an express amendment to the Compact to apply one state's FOIA law to DRBA. 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.
CONCLUSION
As we conclude that DRBA is not subject to Delaware's FOIA law, this Petition is dismissed.
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