Does Delaware's open meeting law require a public body to move a meeting to a bigger room if a large crowd is expected?

Official title

02-IB09: FOIA/Middletown

Plain-English summary

A citizen complained that the Town of Middletown was planning to hold meetings about a proposed WalMart site plan in council chambers too small for the crowds these meetings had drawn (over 100 people at past sessions), and asked the AG to require the town to use the high school auditorium instead. The AG declined to open a formal enforcement case because there was no specific meeting where anyone was actually turned away, but treated the letter as a complaint about a violation "about to occur" given the importance of the issue and likelihood it would recur. On the merits, the AG explained that fire code limited the chambers to 49 people with one exit, but the town had added a second exit to allow up to 107, plus an adjoining room with a speaker system for overflow. The AG found those accommodations adequate for an unanticipated overflow, but cautioned that a speaker system alone doesn't satisfy the open meeting law if a public body can reasonably expect a crowd that large in advance. In that situation, the AG concluded the law requires finding a bigger venue, or adjourning to reconvene somewhere that can fit everyone.

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 town knows a meeting will draw a huge crowd, can it still hold the meeting in a room too small to fit everyone?
A: No, according to this opinion. The AG concluded that when a public body has reason to know a large number of citizens are likely to attend, FOIA requires finding another, larger location for the meeting.

Q: Is it enough to pipe the meeting through a speaker system to an overflow room?
A: It depends, based on this opinion. The AG found a speaker system in an adjoining room can satisfy the law for an unanticipated overflow, especially paired with a chance to be heard before the meeting adjourns, but is not a substitute for a larger venue when a big crowd can be reasonably anticipated in advance.

Q: Can the Attorney General's office investigate a complaint about a meeting that hasn't happened yet?
A: Yes, in this instance. The AG explained that while it generally needs the specific facts of a particular past meeting to open a formal enforcement complaint under § 10005, it treated this letter as addressing a violation "about to occur" under 29 Del. C. § 10005(e), given the importance of the issue and likelihood the situation would recur.

Background and statutory framework

The complaint concerned whether the Town of Middletown's council chambers, capable of holding up to 107 people after the town added a second exit, provided adequate public access under 29 Del. C. § 10004(a) for meetings about a proposed WalMart site plan that had previously drawn over 100 attendees. Relying on its own prior opinion, Att'y Gen. Op. 96-IB23, which had quoted State ex rel. Badke v. Village of Greendale for the principle that a governmental unit must balance public access against the burdens of providing more of it, and on Gutierrez v. City of Albuquerque, where loudspeakers and a chance to be heard satisfied an unanticipated overflow, the AG also cited State v. Vermont Emergency Board for the view that listening from another room loses "the personal contact that is so often an effective ingredient of a meeting." The AG concluded the town's second exit and adjoining speaker-equipped room were adequate for an unexpected overflow, but that FOIA requires a larger venue, or adjournment to one, whenever a public body can reasonably anticipate a crowd beyond its meeting room's capacity.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), requirement that meetings of public bodies be open to the public
• 29 Del. C. § 10005(e), treatment of complaints about a violation "about to occur"

Cases:

• Att'y Gen. Op. 96-IB23 (June 20, 1996), balancing public access against the burden of providing additional access
• State ex rel. Badke v. Village of Greendale, 494 N.W.2d 408, 420 (Wis. 1993), balancing test for meeting-room capacity
• Gutierrez v. City of Albuquerque, 631 P.2d 304 (N.M. 1981), loudspeakers and a chance to be heard satisfied an overflow crowd
• State v. Vermont Emergency Board, 394 A.2d 1360, 1361 (Vt. 1978), listening from another room loses the personal contact of attending a meeting

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/04/04/02-ib09-foiamiddletown/
• Original PDF: not linked from landing page

Original opinion text

Civil Division- Kent County April 4, 2002 02-IB09

Richard L. Abbott, Esquire

The Bayard Firm

222 Delaware Avenue, Suite 900

P.O. Box 25130

Wilmington, DE 19899

Re: Freedom of Information Act/Middletown

Dear Mr. Abbott:

On March 4, 2002, our Office received your letter alleging that the Town of Middletown ("the Town") violated the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), by denying citizens reasonable access to meetings to discuss a proposed WalMart site plan. You believe that the accommodations are inadequate because past meetings to discuss the proposed WalMart store "have drawn in excess of one hundred (100) members of the public" many of whom are members of Citizens Against Route 299 Expansion. You asked the Town to hold any future meetings at the Middletown High School auditorium, which can accommodate more people than the council chambers.

By letter dated March 8, 2002, we asked for the Town's response, which we received that same day. According to the Town, state fire prevention regulations limit the number of people in the Town council chambers to 49 if there is only one exit. To accommodate up to 107 people, the Town installed a second exit. The Town further states that "there is an adjoining office, accessible through a short hallway, which will accommodate several dozen more individuals, and into which a speaker system has been installed."

In your letter, you asked our Office either to commence enforcement proceedings, or "for an opinion on the issue of whether the holding of public meetings by public bodies in facilities that are known to be insufficient in size to handle the reasonably anticipated number of members of the general public who are likely to attend are actually meetings which are 'open to the public'" under FOIA. We decline to take any enforcement action because we do not view your letter as a complaint under Section 10005 of FOIA. In order to consider whether enforcement action is warranted, we would need to have specific facts regarding a particular meeting (date, time and place) of the Town Council at which citizens (by name or number) were turned away or unable to participate in the discussion of public business. However, because of the importance to the community of the issues you raise, and because similar circumstances are likely to reoccur, we will view your complaint as a complaint of a violation "about to occur." 29 Del. C. § 10005(e).

Relevant Statutes

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for an authorized executive session. 29 Del. C. § 10004(a).

Legal Analysis

In 1996, a citizen complained that the Sussex County Planning and Zoning Board met to discuss land use issues, but the council chambers where the meetings were held could not always accommodate all of the members of a citizens group, Hudson Pond Preservation Society. We observed that "'[w]hen the meeting place may not be large enough to accommodate all the people who may wish to attend, the governmental unit must balance the public right of access against the burdens that providing additional public access would impose on the governmental unit.'" Att'y Gen. Op. 96-IB23 (June 20, 1996) (quoting State ex rel. Badke v. Village of Greendale, Wis. Supr., 494 N.W.2d 408, 420 (1993)). We did not find a violation of FOIA in that case because the record showed that the county changed "the place of the public meeting in response to the anticipated or actual crowd, going from the County Chambers to the courtrooms when needed and available." Id.

In Gutierrez v. City of Albuquerque, N.M. Supr., 631 P.2d 304 (1981), the city council met in chambers to consider a controversial license for a liquor store. The chambers could hold only 156 persons, and an overflow crowd arrived early to attend the meeting. Loudspeakers were set up outside the chambers to allow the citizens who could not get in to listen. Any citizen who registered with the council was able to enter the chambers at a designated time to present his or her views. The New Mexico Supreme Court held that the meeting was sufficiently open to the public.

The meeting was held in a hall designed to accommodate a large number of spectators. When the size of the crowd exceeded the capacity of the hall, every effort was made to allow those who could not gain entrance to listen to the proceedings. The City Council even went beyond the requirements of the Open Meetings Act and allowed members of the public to address the Council and present their views for over two hours. A meeting could hardly be more open or more public.

631 P.2d at 307.

The Town has installed a speaker system in the room adjacent to the council chambers, and the Mayor has represented "that should an occasion arise where individuals wishing to participate in the hearing want to be heard, they would be afforded that opportunity prior to the meeting adjourning. That individual merely has to notify Council of his or her wish to be heard." We think those accommodations allow for adequate public access in the event of an unanticipated overflow of citizens who want to attend a meeting.

As a general rule, we do not think that speaker systems satisfy the open meeting requirements of FOIA if an overflow of citizens can reasonably be anticipated. "The personal contact that is so often an effective ingredient of a meeting is absent" if citizens can only listen to a meeting at another location State v. Vermont Emergency Board, Vt. Supr., 394 A.2d 1360, 1361 (1978). "Not only the 'right-to-know' is protected by the statute, but also the right to be present, to be heard, and to participate." Id.

We conclude that if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Robert E. Daley, Esquire

Phillip G. Johnson, Opinion Coordinator