Does a county council's lunch meeting with an outside group count as a public meeting under Delaware's open meeting law?

Official title

02-IB07: FOIA Complaint Against Sussex County Council

Plain-English summary

Sussex County Council's December 11, 2001 meeting agenda listed a noon luncheon with the Sussex County Land Trust. The council argued the luncheon wasn't a "meeting" subject to the open meeting law because the council had already adjourned and no official action was taken there. The AG disagreed: by putting the luncheon on the agenda, the council treated it as part of the public business of that meeting, and Delaware's open meeting law isn't limited to gatherings where formal votes happen. Without minutes of what was actually discussed at the luncheon, the AG drew an adverse inference that the council had discussed partnering with the Land Trust, an inference reinforced by the fact that the council endorsed exactly that kind of partnership at its next public meeting a week later. The AG found a violation for failing to keep minutes of the luncheon, but required no remedy because the substance of the discussion was later aired in public anyway.

Currency note

This opinion was issued in 2002. 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

Q: If a public body's meeting adjourns and members then go to lunch with an outside group, is that lunch covered by the open meeting law?
A: In this opinion, yes, because the lunch was listed on the agenda for that meeting. The AG treated it as a continuation of the noticed public meeting rather than a private gathering, regardless of the council's own characterization that it had "adjourned."

Q: Does the open meeting law only apply when a public body takes an official vote?
A: No, according to this opinion. The AG cited Delaware Chancery Court precedent holding the law covers fact-gathering, deliberation, and discussion generally, not just sessions ending in a formal decision, reasoning that otherwise a board could evade the law by never voting at private gatherings.

Q: What happens if a public body fails to keep minutes of a meeting and a citizen later asks what was discussed?
A: In this case, the AG drew an adverse inference against the council, presuming from the surrounding record (an agenda item and a follow-up vote) that the undocumented discussion covered the topic that later showed up in a formal decision.

Background and statutory framework

The complaint concerned Sussex County Council's failure to prepare minutes of a December 11, 2001 luncheon with the Sussex County Land Trust that was listed on that day's meeting agenda. Applying 29 Del. C. § 10004(f), which requires public bodies to maintain minutes of all meetings and make them available as public records, the AG rejected the council's position that the luncheon fell outside FOIA because no formal action occurred there, relying on Levy v. Board of Education of Cape Henlopen School District for the principle that the open meeting law reaches fact-gathering, deliberation, and discussion regardless of whether a public body reaches a formal decision. Because the council kept no minutes of the luncheon, the AG drew an adverse inference, reinforced by the council's December 18, 2001 vote to endorse a partnership with the Land Trust, that the partnership had in fact been discussed at the luncheon. The AG found a violation but required no remedy since the substance was fully aired at the later public meeting, while cautioning the council to comply strictly with FOIA going forward.

Citations and references

Statutes:

• 29 Del. C. § 10004(f), requirement to maintain minutes of all meetings

Cases:

• Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. (Sept. 11, 1989) (Chandler, V.C.), open meeting law covers fact-gathering and deliberation, not just formal votes

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/03/22/02-ib07-foia-complaint-against-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

Civil Division- Kent County March 22, 2002 02-IB07

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

Re: Freedom of Information Act Complaint Against Sussex County Council

Dear Mr. Kramer:

On January 14, 2002, our Office received your Freedom of Information Act ("FOIA") complaint against the Sussex County Council ("the Council") alleging that the Council violated the open meeting law by failing to prepare minutes of a meeting on December 11, 2001.(1)

By letter dated January 15, 2002, we asked the Council to respond to your complaint. We received the Council's response on March 1, 2002. The Council contends that it "adjourned" the public meeting on December 11, 2001, and that the luncheon that followed at Sussex Pines was not a "public meeting" subject to FOIA because no official action was taken by the Council. Alternatively, the Council contends that the luncheon was open to the public and noticed in the agenda for the December 11, 2001 meeting.

Relevant Statutes

FOIA requires public bodies like the Council to "maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record." 29 Del. C. § 10004(f).

Legal Analysis

The agenda for the December 11, 2001 meeting of the Council listed: "12:00 Sussex County Land Trust — Luncheon at Sussex Pines." The minutes of that meeting state "that the County Council would be having lunch with Sussex County Land Trust. The purpose of the luncheon is to meet the Board of Directors. There will not be any County action taken at the luncheon and anything discussed will be presented formally at the County Council meeting on December 18th."

The minutes of the December 18, 2001 Council meeting show that the Council listened to a proposal by Wendy Baker, President of the Sussex County Land Trust, "to establish a private-public partnership between the organization and the County to preserve open space in Sussex County." Members of the Council endorsed a proposal to enact an ordinance to establish a program with the Land Trust.

We do not agree with the Council's characterization that it "adjourned" the December 11, 2001 meeting, and that what transpired over lunch at Sussex Pines was not a "meeting" of the Council. By listing the Sussex Pines luncheon on the agenda for the December 11, 2001 meeting, the Council clearly considered it part of the public business noticed for that meeting.

The application of the open meeting law does not turn on whether the Council took any "official action" at the luncheon. The Chancery Court has rejected the notion that FOIA only applies to gatherings where a public body takes formal action, but not to a "workshop" held at a local restaurant. Otherwise, "there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business so long as the Board reached no formal decision at that private meeting." Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. (Sept. 11, 1989) (Chandler, V.C.). The open meeting law applies to "fact gathering, deliberations and discussions, all of which surely influence the public entity's final decision." Id.

Without minutes, it is difficult to know one way or the other what the Council discussed with representatives of the Land Trust over lunch on December 11, 2001. But since this was the continuation of a public meeting subject to FOIA, we will draw the adverse inference that the Council discussed entering into a partnership with the Land Trust. This inference is reinforced by the minutes of the Council's December 18, 2001 meeting, where the Council decided to endorse such a partnership and enact the necessary ordinance.

Conclusion

For the foregoing reasons, we find that the Council violated the open meeting requirements of FOIA by not preparing minutes of the luncheon between the Council and representatives of the Land Trust on December 11, 2001. We do not think that any remediation is necessary because the issue of a partnership between the County and the Land Trust was fully aired at a public meeting on December 18, 2001. The Council is cautioned, however, to strictly comply with the requirements of FOIA in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady

Dennis L. Schrader, Esquire

Mr. Phillip G. Johnson, Opinion Coordinator

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1.

You do not complain that the public was unable to attend or participate in the luncheon meeting due to limited space, so we do not need to address that issue. We note, however, that meetings of public bodies in restaurants may give rise to concerns under the open meeting law.