If council members pass a critical letter around and sign it one by one, does that count as an illegal secret meeting under Delaware's FOIA?

Official title

05-IB03: Re: Freedom of Information Act Complaint

Plain-English summary

A Smyrna councilman complained about two separate things. First, a Town workshop on a proposed boat and RV storage ordinance was scheduled without proper notice, though it never actually happened because the sponsor raised FOIA concerns beforehand, and it was later properly noticed and held. Second, a fellow council member drafted a letter criticizing his conduct, then showed it one-on-one to four other council members over about a week, soliciting their reactions; two of them signed it alongside her. The AG found no violation on the workshop, since a meeting that never took place can't violate the open-meeting law, and any concern was cured once it was properly re-noticed. On the letter, though, the AG found a real violation: showing the letter individually to a quorum's worth of members and getting their reactions was an interactive discussion of public business outside public view, not just passing around information. Because the letter had already been finalized and sent by the time the AG ruled, and was now a public record, the AG required no remedy, unlike an earlier case where a similar process had improperly removed an elected official from office.

Currency note

This opinion was issued in 2005. 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: Does a scheduled public workshop that never actually happens violate Delaware's open meeting law?
A: No, according to this opinion, since no "meeting" occurred there could be no FOIA violation, and any notice concerns were resolved when the workshop was properly re-noticed for a later date.

Q: Can a council member avoid FOIA by getting colleagues to sign a letter one at a time instead of holding a group meeting?
A: No, based on this opinion. Individually showing a letter to enough members to form a quorum and soliciting their reactions is an interactive discussion of public business that must comply with FOIA's open-meeting and notice requirements.

Q: If council members violate FOIA while drafting a letter, does the letter get thrown out?
A: Not necessarily, according to this opinion. The AG required no remedy because the letter was already finalized, sent, and a matter of public record, distinguishing it from a case where a similar process had impaired a substantial right like a vote to remove an official from office.

Background and statutory framework

The complaint concerned a canceled October 6, 2004 Town of Smyrna workshop on a boat and RV storage ordinance and a September 28, 2004 letter criticizing a council member's conduct that circulated one-on-one among town council members. Applying the open-meeting requirement of 29 Del. C. § 10004(a), the notice requirement at § 10004(e)(2), and the definitions of "public body" and "meeting" at § 10002(c) and § 10002(b), and drawing on its own opinions holding that the open-meeting law applies to workshops and fact-gathering regardless of formal action (Att'y Gen. Op. 04-IB18, citing Att'y Gen. Op. 02-IB07) and to serial one-on-one communications that build an interactive consensus among a quorum (Att'y Gen. Op. 04-IB17), and distinguishing a case where a comparable violation impaired a vote to remove an elected official (Att'y Gen. Op. 03-IB17), the AG found no violation on the workshop but a violation, requiring no remedy, on the letter.

Citations and references

Statutes:

• 29 Del. C. § 10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. § 10004(e)(2), public bodies must give at least seven days' public notice of regular meetings, including the agenda
• 29 Del. C. § 10002(c), defines "public body" broadly to include municipal entities and their committees
• 29 Del. C. § 10002(b), defines "meeting" as the formal or informal gathering of a quorum to discuss or act on public business

Cases:

• Att'y Gen. Op. 04-IB18 (Oct. 18, 2004), the open meeting law applies to workshops and fact-gathering, not just formal votes
• Att'y Gen. Op. 02-IB07 (Mar. 22, 2002), cited for the same principle on fact gathering, deliberations, and discussions
• Att'y Gen. Op. 04-IB17 (Oct. 18, 2004), an active exchange of information and opinions among a quorum by serial contacts forms a meeting under FOIA
• Att'y Gen. Op. 03-IB17 (July 31, 2003), remediation was required where a comparable violation impaired the substantial right to vote by removing an elected official

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/02/03/05-ib03-re-freedom-of-information-act-complaint/
• Original PDF: not linked from landing page

Original opinion text

February 3, 2005

Civil Division – New Castle County

By U.S. Mail

Councilman Patrick J. Cahill

555 Kates Way

Smyrna, DE 19977

Re: Freedom of Information Act Complaint

Against the Town of Smryna

Dear Council Member Cahill:

On October 27, 2004 this office received your letter alleging that the Town of Smyrna (“the

Town”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C.

Chapter 100 (“FOIA”). You allege specifically that: (1) on September 28, 2004 a quorum of the

Town Council met without notice to the public to discuss your alleged “disruptive behavior” and

pursuit of a “personal agenda” during Council meetings; (2) the September 28, 2004 meeting

occurred without a posted agenda and no minutes were kept; (3) public business was conducted at

this meeting resulting in a letter produced on Town stationary and addressed to you concerning your alleged misconduct; and, (4) on October 6, 2004, the Town Manager and the Director of Planning

and Inspections began to conduct a public hearing on a proposed boat and RV storage ordinance

without either appropriate notice to the public or an agenda.

By letter dated October 29, 2004, this office requested the Town’s response, which was

received on November 18, 2004.1 According to the Town, the event held on October 6, 2004 was

not a “meeting” of a “public body” as defined by FOIA. The event was a public workshop conducted

by employees and staff of the Town. The workshop was intended only to seek input from the public

on the subject of boat and RV storage in preparation for drafting a proposed ordinance. No

ordinance had been drafted at this point. The Town contends that FOIA was not applicable to this

event.

Regarding the letter dated September 28, 2004, the Town contends that there was no

“meeting” held to formulate the letter, and the number of people involved does not constitute a

quorum of the Town Council. The Town states that the letter was drafted by one individual and

expressed her personal concerns with a fellow Council member. Her subsequent communications

with other members of the Town Council were intended only to determine if she was alone in her

opinion. The Town contends that the letter was “not significantly different” from having three

individual letters from the Council members. The Town’s final contention is that there was no

deliberate or intentional effort to circumvent the open meeting provision of FOIA.

Following this office’s review of the complaint and response, additional information was

requested by letter to the Town Solicitor dated December 2, 2004. The Town responded on

December 14, 2004.

1 The Town’s response included a letter from the Town Solicitor with attachments consisting of affidavits from D.

Sue Hensley, William W. Hill, Memphis Evans and Stephen J. Lee.

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those closed” for executive session as authorized by statute. 29 Del. C. § 10004(a). FOIA also

requires all public bodies to “give public notice of their regular meetings and of their intent to hold

an executive session closed to the public, at least 7 days in advance thereof. The notice shall include

the agenda….” 29 Del. C. § 10004(e)(2).

FOIA defines a “public body” in very broad terms to include municipal government entities,

including their committees and subcommittees, which (among other defining factors), are “impliedly

or specifically charged by any other public official, body or agency to advise or make reports,

investigation or recommendations.” 29 Del.C. § 10002(c).

FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members

of any public body for the purpose of discussing or taking action on public business.” 29 Del. C. §

10002(b).

Legal Analysis

A. October 6, 2004 Workshop

We have previously determined that the open meeting requirements of FOIA apply “not only

to gatherings where a public body takes formal action, but also to a ‘workshop.’” Att’y Gen. Op. 04-

IB18 (Oct. 18, 2004) (quoting Att’y Gen. Op. 02-IB07 (Mar. 22, 2002)). “The open meeting law

applies to ‘fact gathering, deliberations, and discussions, all of which surely influence the public

entity’s final decision.” Id.

You acknowledge, however, that the workshop did not go forward because of your FOIA

compliance concerns. Since no “meeting” took place, there could not be a FOIA violation.

Moreover, the workshop was noticed and posted in accordance with FOIA for October 27, 2004.

Any alleged violation resulting from the October 6, 2004 workshop was cured as a result of the

subsequent notice and posting.

B. September 28, 2004 Letter

In her affidavit of November 12, 2004, Council Member Sue Hensley states that she drafted

the letter but did not send it immediately because she “was interested in seeing if [she] was the only

one concerned … with [Council Member] Cahill’s conduct.” She then telephoned, and subsequently

met with, Council Member Memphis Evans regarding the letter. In her affidavit she states that “[h]e

read the letter, said that he agreed with its content, and signed it.”2 Five days thereafter (on

September 20, 2004), Council Member Hensley spoke with Council Member William Hill

immediately following the regularly scheduled Town Council meeting. She showed him the letter,

and he “shared with [her] his own frustration with Mr. Cahill’s conduct….” He then signed the

letter.3 On September 23rd, Council Member Hensley approached Council Member Temple Carter

immediately following a Town Council meeting. She showed him the letter (now bearing signatures

from three Council Members), he read it, and “said that he agreed with its content, but stated that he did not want to sign the letter.” The following day, Council Member Hensley telephoned Council

Member Rick Burritt and faxed him a copy of the letter. While he also shared a lot of her concerns,

2 In a separate affidavit, Council Member Evans corroborates this recitation of the contact.

3 In a separate affidavit, Council Member Hill corroborates this recitation of the contact.

“he did not feel it was appropriate for any member of Council to tell any other member of Council

how to conduct himself, and he declined to sign the letter.”

In all, Council Member Hensley contacted four (4) other members of the Town Council and

solicited their responses to the content of the letter. Those members commented on the letter duringtheir contacts with Council Member Hensley, and following their comments, two of the four Councilmembers chose to be signatories to the letter along with her. In response to this FOIA complaint, the

Town acknowledges that by meeting with the Council members individually, Council Member

Hensley’s contacts could be viewed as an attempt to circumvent the open meeting provision of

FOIA. It posits that our office should view this conduct as Council Member Hensley’s expression of

her personal concerns and her efforts to “’test’ the validity of her own personal concerns against the

opinions of other Council members….”

Based upon the information gathered from this investigation, this office concludes that the

Smyrna Town Council violated the open meeting requirements of FOIA by holding a meeting to

discuss a matter of public business without notice to the public.

In Att’y Gen. Op. 04-IB17 (Oct. 18, 2004), this office determined that the county council

violated the open meeting requirement of FOIA when one councilman circulated a written proposal

to allocate county funds and then contacted three of the seven members of the council by telephone to solicit their views. We determined that, in combination, these facts amounted to a “meeting” of a quorum of the council because “there was an active exchange of information and opinions” during

the telephone calls and not just a “passive receipt of information”, and a “consensus” was reached.

In Att’y Gen. Op. 04-IB17, we noted that “the circulation of written materials among the

members of a public body prior to a public meeting does not violate FOIA so long as there is no

interactive discussion of the materials.” In this case, the record shows that there was an interactive

discussion of the letter drafted by Council Member Hensley with four of the other members of the

Council. A total of five Council members (a quorum) reviewed, discussed and decided whether or

not to sign a letter to be delivered to another member of the Council. These contacts were more than

the passive receipt of information. Council Member Hensley may have formulated the letter itself,

however, by contacting other members of the Town Council, she solicited their opinions, and in

deciding whether to become signatories to the letter, the other members took a position on a matter

of public business: your alleged misconduct. We determine that the sum of those communications

amounted to a meeting of a public body covered by FOIA.

C. Remediation

Based on the facts presented, we do not believe that any remediation is necessary. In contrast

to Att’y Gen. Op. 03-IB17 (July 31, 2003), the action taken by the five members of the Town Council in preparing the letter of September 28, 2004 did not result in the impairment of the substantial right

to vote by removing an elected official from office. The letter has been finalized, sent, and is now a

matter of public record. No purpose would be served at this point in requiring the Council to renotice a meeting to discuss the letter. No doubt the contents of that letter will be the subject of

spirited public debate in the future at meetings noticed to the public as required by FOIA.

Conclusion

For the foregoing reasons, this office determines that the Town did not violate the open

meeting requirements of FOIA by holding a “workshop” without the required notice to the public.

The “workshop” did not go forward after you raised FOIA concerns and thereafter was properly

noticed to the public for a later date. We determine that the Town Council violated the open meeting

requirement of FOIA by, in effect, holding a meeting outside of public view and without notice to the

public in the course of drafting and commenting on a letter to you dated September 28, 2004.

We do not believe that remediation is necessary for that FOIA violation because the

document is now a matter of public record and no purpose would be served in having it re-drafted

and sent after a public meeting. The Town Council is cautioned to strictly comply with the open

meeting requirements of FOIA in the future.

Very truly yours,

Kevin R. Slattery

Deputy Attorney General

APPROVED:

Malcolm S. Cobin, Esquire

State Solicitor

Council Member Patrick Cahill

February 3, 2005

Page 8

XC. The Honorable M. Jane Brady

Attorney General

John Terrence Jaywork, Esquire

W. Michael Tupman, Esquire

Deputy Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Philip G. Johnson

Opinion Coordinator

I:/Kevin.Slattery/Misc./SmyrnaFOIAresponse2