DE 20-IB23 2020-10-13

Can a Delaware administrative board deliberate in private even when FOIA's open-meeting rules would otherwise require the public to watch?

Short answer: Yes. The AG ruled the Environmental Appeals Board did not violate FOIA when it deliberated on a Delmarsh, LLC appeal in executive session, because 7 Del. C. § 6008(a) is a later-enacted, more specific statute that supersedes FOIA's open-meeting rules for the Board.

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 AG opinions are persuasive authority but not binding precedent.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-IB23 10/13/2020 FOIA Opinion Letter to Mr. Richard Abbott re: FOIA Complaint Concerning the Environmental Appeals Board

Plain-English summary

Attorney Richard Abbott, representing Delmarsh, LLC, filed a FOIA petition arguing that the Environmental Appeals Board violated FOIA's open-meeting rules at his client's August 11, 2020 hearing. The Board entered executive session twice, once to deliberate on a motion in limine and once to deliberate on its final decision. Abbott contended that none of FOIA's enumerated executive-session grounds covered the Board's private deliberations.

The AG found no violation. 7 Del. C. § 6008(a), the Environmental Appeals Board's enabling statute, says the Board "shall conduct its public hearings for all appeals in accordance with Chapter 101 of Title 29" but adds that "[d]eliberations of the Board may be conducted in executive session." That conflicts directly with FOIA's open-meeting rule, which has no exception for general administrative-board deliberation. Under Delaware's statutory-construction principles, when two statutes irreconcilably conflict, the later-enacted statute prevails. The AG cited State of Del. Dep't of Labor v. Minner and Green v. County Council of Sussex County for that rule. § 6008(a) was enacted after FOIA, so the General Assembly is presumed to have known of FOIA when it carved out a deliberation exception for the Environmental Appeals Board. The Board's private deliberations on Delmarsh's motion in limine and final decision were therefore lawful.

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 was the appeal about?

The opinion does not detail the substantive issue beyond identifying Delmarsh, LLC as the appellant. The Environmental Appeals Board hears appeals from DNREC permit decisions, enforcement actions, and Secretary's orders. The procedural fight here was whether the Board's two private deliberations (one on a motion in limine, one on the final decision) met FOIA's executive-session rules.

Why does a later statute beat an earlier one?

Because the Delaware General Assembly is presumed to know what laws are already on the books when it passes a new statute. If the new statute conflicts irreconcilably with the old one, the assumption is that the legislature meant to change the rule for the situation the new statute covers. State Dept. of Labor v. Minner, 448 A.2d 227, 229 (Del. 1982) is the standard citation; the rule applies only when the conflict is genuinely irreconcilable, not when both statutes can coexist.

Does this mean every administrative board can deliberate in private?

No. Each administrative board's enabling statute has to be checked. Some Delaware boards have explicit deliberation exceptions like the EAB's; others fall under FOIA's general open-meeting rule with only the limited Section 10004(b) executive-session grounds available. The Board of Pension Trustees and similar bodies may have different rules. If you are practicing before a Delaware administrative board, read the enabling chapter for any private-deliberation language.

Can citizens still see the Board's reasoning?

Yes, after the deliberation. The Board issues a written decision after its private deliberation, and that decision is a public record. The deliberation itself, the back-and-forth among Board members about how to weigh evidence and apply law, is what § 6008(a) shields. The decision and the underlying record (transcripts of the public hearing, exhibits) remain public.

Background and statutory framework

29 Del. C. §§ 10001-10007 (Delaware FOIA) generally requires public bodies to meet in open session, with limited executive-session grounds in § 10004(b) (personnel matters, pending litigation strategy, real estate, security of facilities, and others). None of those grounds covers an administrative board's general deliberation on the merits of a contested appeal.

7 Del. C. § 6008(a) is part of the Department of Natural Resources and Environmental Control's enabling chapter. It directs the Environmental Appeals Board to conduct public hearings under Chapter 101 of Title 29 (the Administrative Procedures Act), but specifically permits the Board's "deliberations" to occur in executive session. That language tracks the practice of judicial deliberation, where judges deliberate privately before issuing a written decision.

The conflict-of-statutes rule comes from State of Del. Dep't of Labor v. Minner, 448 A.2d 227 (Del. 1982), quoting Green v. County Council of Sussex County, 415 A.2d 481 (Del. Ch. 1980): "It is assumed that when the General Assembly enacts a later statute in an area covered by a prior statute, it has in mind the prior statute and therefore statutes on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the statutes, in which case the later supersedes the earlier." The AG noted the relevant enactment dates: 60 Del. Laws ch. 641, § 1 (1977) and 68 Del. Laws ch. 148, § 1 (1991), confirming § 6008(a)'s post-FOIA enactment.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10005 (petition procedure)
29 Del. C. § 10005(e) (AG determinations)
7 Del. C. § 6008(a) (EAB deliberations in executive session)
State of Del. Dep't of Labor v. Minner, 448 A.2d 227 (Del. 1982)
Green v. County Council of Sussex County, 415 A.2d 481 (Del. Ch. 1980)

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-IB23
October 13, 2020
VIA EMAIL
Richard Abbott, Esq.
Abbott Law Firm, LLC
724 Yorklyn Rd., Suite 240
Hockessin, Delaware 19707
[email protected]

RE:

FOIA Petition Regarding the Environmental Appeals Board

Dear Mr. Abbott:

We write in response to your correspondence on behalf of your client, Delmarsh, LLC alleging that the Environmental Appeals Board ("Board") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, it is our determination that the Board has not violated FOIA as alleged.

BACKGROUND

The Board held a public hearing involving your client on August 11, 2020. At the hearing, the Board entered executive sessions to deliberate a motion in limine and its final decision regarding your client. This Petition followed, challenging the Board's authority to enter executive session in these circumstances. The Petition alleges that the Board improperly "failed to conduct its deliberations in public as required by FOIA."[1]

The Board's legal counsel responded to the Petition ("Response"), pointing out that 7 Del. C. § 6008(a) is the specific statutory authority permitting the Board's private deliberations. The Board contends that this provision is explicit and the principles of statutory construction need not be applied, but even if such principles were applied, 7 Del. C. § 6008(a) overrides the prior-enacted FOIA statute and is a more specific "carve-out" of FOIA's general meeting requirements. In other words, the Board argues that 7 Del. C. § 6008(a) supersedes FOIA's restrictions on the Board's ability to deliberate privately.

DISCUSSION

When there is an irreconcilable conflict between two statutes, the later-enacted statute prevails over the prior statute.[2] "It is assumed that when the General Assembly enacts a later statute in an area covered by a prior statute, it has in mind the prior statute and therefore statutes on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the statutes, in which case the later supersedes the earlier."[3]

Here, 7 Del. C. § 6008(a) states that the Board must conduct its public hearings for all appeals in accordance with Chapter 101 of Title 29 and that "[d]eliberations of the Board may be conducted in executive session." Conversely, FOIA requires all meetings of public bodies to be conducted publicly, excepting several delineated instances in which executive session is appropriate. No FOIA exception permits all the Board's deliberations to be private. As such, there is an irreconcilable conflict between these two statutes. In light of this conflict, we assume the General Assembly was aware of the previously enacted FOIA statute and intended 7 Del. C. § 6008(a) to supersede FOIA's restrictions and allow the Board to deliberate privately.[4]

CONCLUSION

Based on the foregoing, we determine that the Board has not violated FOIA by deliberating in executive session at the August 11, 2020 hearing.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Kevin Maloney, Deputy Attorney General
Dorey Cole, Deputy Attorney General

[1] Petition.
[2] State of Del. Dep't of Labor v. Minner, 448 A.2d 227, 229 (Del. 1982).
[3] Id. (quoting Green v. County Council of Sussex County, 415 A.2d 481, 484 (Del. Ch. 1980)).
[4] See 68 Del. Laws ch. 148, § 1 (1991); 60 Del. Laws, ch. 641, § 1 (1977).