DE 21-IB16 2021-07-06

Does an executive-branch advisory council have to follow Delaware open-meetings rules?

Short answer: Yes. The AG ruled the Governor's Council on Agriculture (created by 29 Del. C. § 8108) and the Delaware Council on Food and Farm Policy (created by the Department Secretary) are both public bodies that violated FOIA by failing to post notices, agendas, and minutes.

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 AG opinions are persuasive authority but not binding precedent.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

21-IB16 07/06/2021 FOIA Opinion Letter to William Pickett re: FOIA Complaint Concerning the Governor's Council on Agriculture and the Delaware Council on Food and Farm Policy

Plain-English summary

The petitioner alleged that two state advisory bodies, the Governor's Council on Agriculture and the Delaware Council on Food and Farm Policy (DCFFP), had been operating without posting meeting notices, agendas, or minutes. The Council on Agriculture was created by 29 Del. C. § 8108 in 1970, with seven uncompensated members appointed by the Governor and tasked with advising the Department Secretary. The DCFFP was formed in 2018 by the Department's Deputy Principal Assistant in response to a 2016 farm-and-food report; the Department Secretary appointed members officially.

Both Councils, through Department counsel, conceded they are public bodies. The Council on Agriculture had met "sporadically" without notices, agendas, or minutes, justifying that informally because the meetings mostly involved the Secretary reporting on departmental and legislative information already publicly available. The DCFFP maintained meeting minutes on its own website but had not posted them on the designated State of Delaware FOIA website. The AG accepted the concession, found violations, and recommended the Councils reconstruct minutes for the previous six months (or any meetings during that window that were recorded), post compliant minutes to the State website per § 10004(f), and have members complete FOIA training.

What this means for you

If you are a member of a Delaware state advisory council

Even if your council is genuinely advisory, even if compensation is zero, even if meetings consist mostly of staff briefings, you are likely a public body subject to FOIA. Stop relying on informal understandings:

Post meeting notices and agendas before each meeting.
Keep minutes that name members present, vote outcomes (if any), and actions agreed upon.
For executive-branch state-government public bodies, post draft minutes on the State of Delaware FOIA website if your group meets less than four times a year, and post final approved minutes there in any event. A council's own website is not enough.
Refresh on FOIA training periodically. The AG has been recommending training as part of remediation for years.

If you are a Delaware citizen who suspects an advisory body is meeting privately

File a § 10005(e) petition. The AG's office consistently treats General-Assembly-created councils and Secretary-appointed councils as public bodies. The remedies are real (after-the-fact minutes, FOIA training) even when the AG cannot invalidate prior decisions.

If you are an attorney advising an executive-branch state advisory body

Audit the body's posting practices. The State of Delaware maintains a designated FOIA website where executive-branch public bodies must post meeting materials. Posting only on a department's own page is non-compliant under § 10004(f). The AG also typically applies a six-month look-back from the date of the petition for remediation purposes (citing 17-IB31).

If you are a Delaware reporter or stakeholder tracking ag policy

The DCFFP and the Governor's Council on Agriculture are now squarely on FOIA's radar. Their notices, agendas, and minutes should be on the designated State website going forward. If you do not see them there, that is itself a basis for another petition.

Common questions

What is the "designated State of Delaware website" for FOIA postings?

The Delaware FOIA Public Meeting Calendar, currently at publicmeetings.delaware.gov, is the central state portal for executive-branch meeting notices, agendas, and minutes. Section 10004(f) requires executive-branch public bodies to post draft minutes there if they meet less than four times a year, and final approved minutes in any event.

Is posting on a council's own website enough?

No. The DCFFP made that argument and the AG explicitly rejected it. Posting on the designated State website is required even when the council also posts elsewhere.

Why do informally created councils still count?

Because the public-body test under § 10002(h) covers groups appointed by public officials (including a Department Secretary) and groups charged with advising or making recommendations. The DCFFP fit both prongs even though no statute created it. Informality does not insulate the body from FOIA.

Is six months a hard cutoff for what the AG will look at?

Roughly. The AG cited 17-IB31 for the practice of declining to consider petitions about violations more than six months old "for fairness and practical reasons." Reconstructed minutes are typically ordered for the six months preceding the petition.

Does the recommendation to take FOIA training have legal force?

It is a recommendation, not an order. But ignoring it usually surfaces in a future petition and weakens the council's credibility with the AG. The AG can also escalate, including by referring to other authorities, if a body refuses to follow recommended remediation.

Background and statutory framework

The petition alleged FOIA open-meeting violations against both the Governor's Council on Agriculture and the DCFFP. The Council on Agriculture is established under 29 Del. C. § 8108, with seven members appointed by the Governor; members serve without compensation and the Council advises, recommends, and refers matters of "departmental concern" to the Secretary, plus other matters the Governor or Secretary refer. The DCFFP was created in 2018 by the Department's Deputy Principal Assistant after a 2016 University-of-Delaware-co-authored farm-and-food report; the Department Secretary appointed members officially.

Counsel for the Department conceded both Councils are public bodies. The Council on Agriculture had met "sporadically" without notices, agendas, or minutes; counsel argued meetings were just departmental and legislative briefings of information already publicly available. The DCFFP posted minutes and presentations on its own website but not on the designated State FOIA website.

The two-prong public-body test under § 10002(h) was satisfied for both: prong one (legislatively or publicly-officially appointed bodies that advise or report) and prong two (uncompensated members charged with advising). The AG cited 18-IB28 for the framework.

For the open-meeting requirements: § 10004 requires advance notice, posting, and minutes; § 10004(f) specifically requires that "all public bodies in the executive branch of state government must post draft minutes if they meet less than four times a year and must post final approved minutes to the designated State of Delaware website." For remediation, the AG looked back six months from the petition (citing 17-IB31), recommended that minutes be reconstructed where preserved materials existed (citing 19-IB09), and recommended FOIA training.

Citations

29 Del. C. §§ 10001-10007 (Delaware FOIA)
29 Del. C. § 8108 (Governor's Council on Agriculture)
29 Del. C. § 10002(h) (definition of public body, as numbered in 2021)
29 Del. C. § 10004 (open meeting requirements)
29 Del. C. § 10004(f) (minutes, posting on designated State website)
29 Del. C. § 10005 / § 10005(e) (petition procedure)
Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 (Jun. 1, 2018)
Del. Op. Att'y Gen. 19-IB09, 2019 WL 1511364 (Feb. 22, 2019)
Del. Op. Att'y Gen. 17-IB31, 2017 WL 3426271 (July 24, 2017)

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. 21-IB16
July 6, 2021
VIA EMAIL
William Pickett
[email protected]
RE:

FOIA Petition Regarding the Governor's Council on Agriculture and the Delaware Council on Food and Farm Policy

Dear Mr. Pickett:
We write in response to your correspondence alleging that the Governor's Council on Agriculture and the Delaware Council on Food and Farm Policy (collectively hereinafter, "Councils") violated the Delaware 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(e) regarding whether a violation of FOIA has occurred or is about to occur. As set forth below, we conclude that both Councils are public bodies and have violated FOIA by failing to strictly adhere to the open meeting requirements.

BACKGROUND

This Petition concerns two entities involved with Delaware agriculture and alleges that both Councils failed to post meeting notices, agendas, or minutes in accordance with FOIA. As remediation, you ask our Office to mandate FOIA training for the Delaware Department of Agriculture staff and both Councils and require the Councils post online minutes of all past meetings.

On June 16, 2021, counsel responded on behalf of both Councils ("Response"). The attorney gives a brief background of each entity and acknowledges they both qualify as "public bodies" as defined by FOIA. The Governor's Council on Agriculture was formed by statutory mandate in 1970.[1] The statutory provision, 29 Del. C. § 8108, provides that seven members are appointed by the Governor and receive no compensation. The Council advises, recommends, and refers to the Secretary matters which are of "departmental concern" and must consider other matters that the Governor or Secretary refer. The Council on Agriculture had only met "sporadically in the last couple of years" and has not created notices, agendas, or minutes, noting "[m]eetings have mostly entailed the Secretary reporting on departmental and legislative information which is readily available to the public on either the [Department] or the General Assembly's websites."[2]

The Department also acknowledges that the Delaware Council on Food and Farm Policy ("DCFFP") is a public body, explaining that it was formed in response to a 2016 Report entitled "Connecting Healthy Farms to Healthy Delawareans: A Farm and Food Report" that the Department and the University of Delaware's Center for Research in Education and Social Policy drafted together. In 2018, the Department's Deputy Principal Assistant convened a group of stakeholders and asked for volunteers; those volunteers were officially appointed by the Secretary of the Department to serve on this Council. Council members do not receive compensation and are tasked with advising the Secretary with regard to various matters related to food production, policy, distribution, access, and nutrition. The Response concedes that the DCFFP is a public body because "it was established by the [Department Secretary], its members were appointed and include non-employees of the Department, and they were specifically charged to advise him."[3] The Department points out that the DCFFP maintains a website with reports created by DCFFP, information on the farm and food policy within the State, and all past meeting minutes and presentations. The Department argues that although the DCFFP has not posted its meetings on the designated State of Delaware website, the DCFFP has met the spirit of the law by engaging the public on its own website. The DCFFP maintains minutes of its meetings on its own website, which it alleges is in compliance with FOIA. For both Councils, the Response committed to complying with FOIA's open meeting requirements in the future.

DISCUSSION

FOIA mandates specific requirements related to public meetings, including advance notice, posting notices, and meeting minutes.[4] These open meeting requirements only apply to a public body. To determine if an entity is a "public body," a two-part analysis is required.[5] The first inquiry is whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," which includes a ". . . committee, . . . advisory board and committee . . . group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity."[6] If the first part is met, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations."[7]

As acknowledged in the Response, both Councils meet this definition. The Governor's Council on Agriculture is a body established by an act of the General Assembly and is specifically charged with advising, recommending, and referring matters to the Department Secretary and considering other matters as directed by the Governor or Secretary. The DCFFP consists of members appointed by the Department Secretary and is responsible for advising the Secretary regarding various matters of food policy. The Response concedes that the Councils have not operated in strict compliance with certain open meeting requirements, although the DCFFP contends that it complied with the law by posting minutes and presentations to its own website. Posting minutes to its own DCFFP website does not comply with the letter of law, as Section 10004(f) provides that all public bodies in the executive branch of state government must post draft minutes if they meet less than four times a year and must post final approved minutes to the designated State of Delaware website.

Having found both Councils are public bodies and certain open meeting requirements have not been met, we must determine whether it is appropriate to recommend remediation. When minutes exist or those meetings have been recorded or otherwise preserved, this Office has recommended that the public body make available the existing minutes or use the existing materials to create minutes compliant with Section 10004(f).[8] In this case, as the DCFFP represents that it has made minutes available on its website, to the extent that it can create minutes in accordance with Section 10004(f), we recommend it do so for meetings within the six months immediately preceding the date of this Petition filing (meetings since December 4, 2020). To the extent any other public meetings have been held in this timeframe which have been recorded or preserved in some way, we recommend that the Councils create minutes for those meetings as well.[9] Any minutes created post hoc should be posted on the designated State website in accordance with Section 10004(f). Finally, we accept the Councils' commitment to conduct future public meetings in accordance with FOIA and recommend the members of both Councils engage in FOIA training.

CONCLUSION

For the reasons set forth herein, we conclude that both Councils are public bodies and have violated FOIA by failing to comply with the open meeting requirements.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Carla A.K. Jarosz, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Response.
[2] Response.
[3] Id.
[4] 29 Del. C. § 10004.
[5] Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706, at 1 (Jun. 1, 2018).
[6] 29 Del. C. § 10002(h).
[7] Id.
[8] See, e.g., Del. Op. Att'y Gen. 19-IB09, 2019 WL 1511364, at 4 (Feb. 22, 2019).
[9] Del. Op. Att'y Gen. 17-IB31, 2017 WL 3426271, at *1 (July 24, 2017).