DE 20-IB21 2020-07-22

Does Delaware FOIA require a town council to take up a particular issue at a public meeting before the town manager or solicitor can act on it?

Short answer: No. The AG ruled FOIA does not dictate when a public body must take up a matter of public business. Councilmember Vicki Carmean's complaint that Fenwick Island Town officials approved an open pool bar liquor license outside of a public meeting could not be addressed under the FOIA petition process, even if she was right that they should have.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

20-IB21 7/22/2020 FOIA Opinion Letter to Councilmember Vicki Carmean re: FOIA Complaint Concerning the Town of Fenwick Island

Plain-English summary

Fenwick Island Councilmember Vicki Carmean filed a FOIA petition over an open pool bar with music and a liquor-license approval. Her complaint was that Town staff and officials, including the Town Manager and Town Solicitor, were sending letters and negotiating with the owner without bringing the matter to the full Council in a public meeting. She also questioned whether the Town Manager could unilaterally interpret the zoning code outside of a Council meeting.

The AG declined to find a FOIA violation. The opinion repeated a theme the AG has stated more than once: FOIA does not dictate when a public body must take up a matter, and it does not authorize the AG to second-guess who within a town has authority to send letters or interpret ordinances. Carmean's substantive concern, that the Town Manager and Solicitor lacked authority to act, was a question of municipal law, not 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.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, regulates two main things: access to public records and the conduct of meetings (notice, agendas, minutes, and executive-session limits). The AG's petition jurisdiction under 29 Del. C. § 10005 is bounded by what FOIA itself covers.

The opinion's core authority is a quotation from AG Opinion 17-IB09 (2017), which itself echoes 07-IB24 (2007): "FOIA does not determine when a public body must take up a matter of public business." If a Council never decides to put something on its agenda, FOIA does not force it to. If a town manager decides an issue without consulting the Council, FOIA does not adjudicate whether that delegation was lawful, only whether any meeting that did happen complied with notice/minutes/executive-session rules.

The petition here did not allege that an actual unannounced Council meeting took place. The complaint was that no Council meeting had been held at all. That is precisely the situation the AG opinion line addresses, and the result is the same: the AG petition process is not a tool to force a council to schedule a vote.

Common questions

Q: If the AG cannot order a council to take a vote, how do you fix a town manager who is making policy alone?
A: At the time of this opinion, the available channels were political and judicial. Politically, councilmembers can move to schedule items, hold public meetings, censure officials, or amend the town's authority delegations. Judicially, an aggrieved person can sue under whatever municipal-law theory applies (ultra vires action by an official, declaratory judgment that a code interpretation is wrong, an injunction against enforcement). FOIA is the wrong tool when the complaint is "this issue should have been on the agenda but never was."

Q: Could FOIA help if the Town Manager and Solicitor had emailed Councilmembers individually to circumvent a public meeting?
A: That would be a different case. Delaware AG opinions have treated serial email exchanges among councilmembers as the functional equivalent of a "meeting" subject to notice and minutes requirements. But the petition here did not present that scenario; it described unilateral action by staff, not concealed deliberations among the Council itself.

Q: What about the petitioner's belief that "all documents that express the will of the people must be backed up by minutes, notes, or other documentation"?
A: FOIA imposes minutes and recordkeeping rules on meetings of public bodies. It does not impose a general requirement that every administrative action be documented in a particular way. That sort of recordkeeping rule, if it exists, would come from a town charter, an administrative procedure act, or a separate statute, not FOIA.

Q: Was Carmean right that the underlying actions might have been improper?
A: The AG took no position. The opinion was careful to limit itself to FOIA jurisdiction and not address whether the Town Manager could properly interpret the Code or whether a public meeting was substantively required. Those questions remained for another forum.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10005 (FOIA petition process)
Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247 (Apr. 25, 2017)
Del. Op. Att'y Gen. 07-IB24, 2007 WL 4913657 (Dec. 27, 2007)

Source

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB21
July 22, 2020
VIA EMAIL
Councilmember Vicki L. Carmean
Fenwick Island Town Council
[email protected]
RE:

FOIA Petition Regarding the Fenwick Island Town Council

Dear Councilmember Carmean:
We write in response to your correspondence alleging that the Fenwick Island Town
Council 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.
The Petition involves the approval of a liquor license for an outdoor pool bar with music.
The Petition alleges that multiple FOIA violations occurred, including certain unauthorized
correspondence sent by the Town Manager and other staff about this matter, certain unauthorized
statements by another Councilmember on behalf of the Town Council, certain Town officials'
negotiations with the owner, and the Town Manager's unilateral decision to interpret the Code
outside of a Council meeting. The Petition states in part, as follows:
Once again, I am not filing this complaint with the expectation that the FOIA Office
will rule on either the interpretation of the Code of the Town of Fenwick Island or
whether a liquor license should be issued. My concern is that I believe the Delaware
Open Meetings laws have been violated by completely circumventing the
prerequisite for a Town Council meeting, discussion, and a vote on a Town
resolution to allow an open pool bar with music/live entertainment which appears
to be in contradiction to our zoning ordinances. To what extent do the Town
Manager and Town Solicitor have the authority to send legally binding letters

setting forth a new interpretation of the Code without reviewing these ideas directly
with the Council Members first in a public or even executive setting and receiving
written authority to alter such ordinances and/or submitting the new interpretation
to the public via two readings and a vote?1
The Petition also states your belief that "under FOIA, all documents that express the will
of the people must be backed up by minutes, notes, or other documentation as to who made the
decision and why."2
The crux of the Petition is that the Town Council did not discuss in a public meeting the
approval of the open pool bar and that certain Town officials made statements on behalf of the
Town, allegedly without authority to do so. We offer no opinion on those allegations as the legality
and appropriateness of such matters are outside the scope of Section 10005. "To be clear, FOIA
'does not determine when a public body must take up a matter of public business.'"3 As such, the
questions of whether the Town officials should have discussed the open pool bar at a public
meeting and whether Town officials appropriately spoke on behalf of the Town are matters outside
the scope of FOIA.
Based on above, we find that the Town has not violated FOIA as alleged.
Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

Mary Schrider-Fox, Esq., Town Solicitor

Petition.

Id.

Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 4 (Apr. 25, 2017) (quoting Del. Op.
Att'y Gen. 07-IB24, 2007 WL 4913657, at 3 (Dec. 27, 2007)).
2