DE 20-IB27 2020-11-09

Does Delaware's open meetings law require a state agency to take live public comment at a virtual permit hearing if it lets the applicant give a live presentation?

Short answer: No. The AG ruled DNREC did not violate FOIA when it ran two 2020 virtual permit hearings (Delaware City Refining and Croda) without live public comment, accepting only written comments. Permit hearings led by the DNREC Secretary or a delegated hearing officer are 'body of one' proceedings exempt from FOIA's open meeting rules under 29 Del. C. § 10004(h)(6).

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 AG opinions are persuasive authority but not binding precedent.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-IB27 11/9/2020 FOIA Opinion Letter to Mr. Keith Steck re: FOIA Complaint Concerning the Department of Natural Resources and Environmental Control

Plain-English summary

DNREC ran two virtual permit hearings in mid-2020 during the COVID-19 pandemic, one for Delaware City Refining Company and one for Croda, Inc. Both hearings followed DNREC's normal format except that the hearing officer did not take live oral comment from the public. Members of the public could submit written comments through July 31, 2020. Keith Steck filed a FOIA petition arguing that, because the applicants were allowed to give live presentations, DNREC had to allow the public the same chance for live comment.

The AG disagreed. The opinion held that DNREC's permit hearings are not "meetings" subject to FOIA's open meeting rules. The reason is structural: the decision-maker is the DNREC Secretary, who acts alone or through a delegated hearing officer. A "body of one" is exempt from FOIA's open meeting rules under 29 Del. C. § 10004(h)(6), and AG Opinion 13-IB04 had already applied that exemption to DNREC permit hearings. Because the open meeting rules did not apply, the question of whether public comment was equal to applicant presentation was outside FOIA's reach.

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's open meetings provisions are in 29 Del. C. § 10004. The "body of one" exemption is in subsection (h)(6), which exempts from open meeting requirements public bodies "having only 1 member." The structural reasoning is that a single decision-maker is not "meeting" with anyone in the FOIA sense; without a quorum to convene, there is nothing to open.

7 Del. C. § 6004 gives the DNREC Secretary the discretion to hold a permit hearing. The Secretary delegates that hearing to a hearing officer. The hearing officer takes evidence and comments, then presents findings to the Secretary, who makes the final decision. Under AG Opinion 13-IB04 (Sept. 27, 2013), this structure made DNREC permit proceedings "body of one" actions for FOIA purposes: "Given that DNREC is headed by a single executive officer, namely, the Secretary, rather than a group of individuals, DNREC is not subject to the open meeting provisions of FOIA."

The opinion also flagged a second, narrower point: even when FOIA's open meeting rules apply to a public body, FOIA does not require any specific public-comment format. Public bodies set their own comment policies. So even apart from the body-of-one exemption, a "you let the applicant talk live but only let me write" complaint is not a FOIA claim.

Common questions

Q: Are DNREC permit hearings "secret" then?
A: No. The hearings are public, the application is public, the record is public, and a written-comment period is provided. The body-of-one exemption only means FOIA's open meeting requirements (advance posted agenda, minutes obligation, executive-session rules) do not technically govern. DNREC has its own procedural regulations for permit hearings under 7 Del. C. § 6004.

Q: Why is "body of one" the test rather than "quorum"?
A: Both rest on the same structural idea. Open meetings law applies when a multi-member public body convenes a quorum to deliberate. A single decision-maker, by definition, has no quorum and no deliberation among members; the meeting concept does not apply. Section 10004(h)(6) codifies this directly.

Q: What did Steck have for recourse, if anything?
A: For challenges to DNREC's permit-hearing procedures, the channels were DNREC's own regulations, the Environmental Appeals Board, and judicial review of the final permit decision. None of those are FOIA channels. Steck would have had to challenge procedural fairness through the administrative-law route, not the FOIA petition route.

Q: Did COVID-19 change the AG's analysis?
A: It shaped the facts (the hearings were virtual, and the agency cited public-health concerns for limiting live comment), but it did not affect the legal rule. The body-of-one exemption applied regardless of whether the hearing was in person or by video link.

Q: Does this rule extend to other state agencies headed by a single secretary or commissioner?
A: Likely yes, by analogy. Under the body-of-one rule, single-executive agencies are generally outside FOIA's open meeting rules when the executive (or a delegate) acts alone. They are still subject to the public-records side of FOIA. The line between the two halves of FOIA is what the opinion turns on.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 10004(h)(6) (body-of-one exemption from open meetings)
29 Del. C. § 10005 (FOIA petition process)
7 Del. C. § 6004 (DNREC public hearing authority)
Del. Op. Att'y Gen. 13-IB04, 2013 WL 5615222 (Sept. 27, 2013)

Source

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-IB27
November 9, 2020
VIA EMAIL
Keith Steck
[email protected]
RE:

FOIA Petition Regarding Delaware Department of Natural Resources and
Environmental Control

Dear Mr. Steck:
We write in response to your correspondence alleging that the Delaware Department of
Natural Resources and Environmental Control ("DNREC") 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 below, we find that that DNREC did not violate FOIA
as alleged.
BACKGROUND
Pursuant to its regulatory authority, DNREC is authorized to hold public hearings for
permit applications. DNREC's in-person permit application hearings typically follow the same
format. A hearing officer, who is delegated authority by the Secretary of DNREC, presides over
the hearing. DNREC staff first makes a presentation about the application and the regulatory
program and gives preliminary comments. The applicant is then given an opportunity to make a
presentation, followed by an opportunity for members of the public to give brief comments, limited
to no more than five minutes per person. After the hearing concludes, the public is afforded an
additional opportunity to submit written public comments into the record for a designated period
of time. In light of the public health threat posed by COVID-19, DNREC held virtual public
hearings on July 14, 2020 and July 21, 2020 regarding permit applications for the Delaware City
Refining Company and Croda, Inc., respectively. These two virtual hearings followed this format,

except the hearing officer did not accept live comments, but permitted a period for written
comments after the hearing.
This Petition followed, in which you allege that DNREC violated FOIA by failing to accept
live public comment at both hearings, even though the applicants were given the opportunity to
make a live presentation at the hearings. The Petition states that both hearings permitted written
public comments until July 31, 2020. However, you argue "[b]ecause DNREC allowed CRODA
and the Delaware City Refinery to present public comment at these hearings, DNREC should have
included a reasonable period of public participation open to all citizens, which [it] did not."1
DNREC replied to the Petition through counsel ("Response"). Although DNREC is a
public body, DNREC argues that not all meetings of DNREC are subject to FOIA. DNREC's
counsel explains that "Section 6004 of Title 7 provides the authority for DNREC to present permit
applications at public hearings if the Secretary receives a meritorious request, or if the Secretary
deems a hearing to be in the best interest of the State."2 DNREC argues that these hearings are
not "meetings" as defined by FOIA, because there is no quorum present to discuss or decide on
public business. DNREC asserts that the decision-maker, the Secretary, appoints a hearing officer
to preside over the hearing, but regardless, the Secretary or his delegate is a "body of one."
DNREC contends that without a quorum, there can be no "meeting" as contemplated by FOIA. In
addition, DNREC argues, even if FOIA applied, the statute does not require a public body to
conduct a public comment period. Contrary to the Petition's assertion, DNREC states that the
applicant is not a member of a public and gives a presentation to "give the public more information
on which to base their public comments."3 As such, DNREC contends no inequitable treatment
of citizens occurred at the hearings.
DISCUSSION
A public body having only one member is exempt from FOIA's open meeting
requirements.4 Our Office has previously determined that while DNREC is a public body subject
to the records requirements, the Secretary or his or her designee, as a single executive decisionmaker, is exempt from FOIA's open meeting requirements when conducting a public hearing for
a permit.5 Consistent with that determination, we find the July 14, 2020 and July 21, 2020 permit

Petition.

Response.

Id.

29 Del. C. § 10004(h)(6).

Del. Op. Att'y Gen. 13-IB04, 2013 WL 5615222, at *2-3 (Sept. 27, 2013) ("Given that
DNREC is headed by a single executive officer – namely, the Secretary – rather than a 'group' of
individuals, DNREC is not subject to the open meeting provisions of FOIA.").
2

application hearings are not subject to the open meeting requirements of FOIA. Accordingly, there
can be no FOIA violation.
CONCLUSION
For the reasons set forth above, we find that DNREC did not violate FOIA as alleged in
the Petition.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General
cc:

Devera B. Scott, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General