Does Delaware's FOIA open-meeting law cover the House of Representatives Ethics Committee, and can the AG decide a prior-restraint free-speech challenge inside a FOIA complaint?

Official title

21-IB24 10/06/2021 FOIA Opinion Letter to Randall Chase re: FOIA Complaint Concerning the Ethics Committee, House of Representatives, Delaware General Assembly

Plain-English summary

Randall Chase, an Associated Press reporter, filed a FOIA Petition challenging the Ethics Committee of the Delaware House of Representatives. The Committee had scheduled a meeting for September 10, 2021. Its public agenda said the Committee would "discuss executive business" and that the meeting would be closed to the public.

Chase made two arguments. First, that any public body planning an executive session must state the reason for the executive session on its agenda and take a public vote before going into closed session, per Delaware FOIA's general open-meeting rules. Second, he asked the AG to determine whether the public-disclosure restrictions in House Resolution 4 (which created the Committee's procedural framework) constitute an unconstitutional prior restraint on speech.

The Committee answered that 29 Del. C. § 10004(h)(7) exempts ethics committees of the General Assembly from FOIA's open-meeting requirements entirely. The Committee also argued the prior-restraint question is not appropriate to consider in a FOIA petition.

The AG ruled for the Committee on both points.

On the open-meeting question, § 10004(h)(7) specifically excludes the Committee from FOIA's open-meeting requirements. The provision lists which legislative-branch bodies fall within FOIA's open-meeting reach. It includes the House, the Senate, the Joint Finance Committee, the Joint Committee on Capital Improvement, the Joint Legislative Oversight and Sunset Committee, and Legislative Council. It also includes "committees, excluding ethics committees, specifically enumerated and created by Resolution of the House of Representatives or Senate." The phrase "excluding ethics committees" is the Committee's escape hatch. Because the open-meeting requirements do not apply, the Committee's closed September 10, 2021 meeting cannot be a FOIA violation. The agenda's executive-session reasoning, the absence of a public vote, and the closed format are all permissible for a Committee that FOIA does not reach in this respect.

On the prior-restraint question, the AG petition under § 10005 is limited to determining "whether a violation of FOIA has occurred or is about to occur." The opinion held that whether House Resolution 4's restrictions constitute a prior restraint on speech is "outside the purview of this Office's statutory authority to determine." The proper forum is a court, in a separate action.

What this means for you

For Delaware House and Senate ethics committees. The opinion holds these committees are excluded from FOIA's open-meeting requirements in § 10004. A closed meeting, an agenda that does not recite an executive-session reason, and the absence of a public vote to close the meeting are not FOIA violations for a body those rules do not reach. The committee's own resolution still governs its procedure; the exemption runs only from FOIA.

For journalists covering legislative ethics matters. A FOIA petition will not get you into an ethics committee meeting. The statutory exclusion is specific, and the opinion confirms the AG has no authority to order otherwise through the petition process.

For First Amendment advocates challenging the confidentiality rules. The AG declined to decide whether House Resolution 4's restrictions on public disclosure are an unconstitutional prior restraint, holding that question outside this Office's authority in a FOIA petition. A constitutional challenge would have to be brought in court.

Common questions

What is § 10004(h)(7) and what does it actually exclude?
Section 10004(h)(7) lists which legislative-branch bodies are subject to FOIA's open-meeting requirements. By default, "public bodies within the legislative branch of the state government" are excluded from those requirements. The provision then carves several legislative bodies back in (the House, the Senate, the Joint Finance Committee, the Joint Committee on Capital Improvement, the Joint Legislative Oversight and Sunset Committee, Legislative Council, certain Resolution-created committees and task forces). Inside the carve-back is a carve-out: "excluding ethics committees." So ethics committees fall back into the default exclusion and are not subject to open-meeting requirements.

Does this mean ethics-committee proceedings can be entirely secret?
What the AG ruled here is narrow: FOIA's open-meeting rules do not require the Committee's meetings to be public. The Committee operates under House Resolution 4, which sets its own procedural and disclosure rules. The opinion does not address what those rules require beyond FOIA.

Could a FOIA petitioner attack House Resolution 4 itself as unconstitutional?
Not through a FOIA petition to the AG. The opinion holds the AG's authority under § 10005 is limited to determining whether a FOIA violation has occurred, and that the prior-restraint question is outside that authority. A constitutional challenge would have to be brought in court.

Is this opinion about records or about meetings?
Meetings. The opinion turns on § 10004, FOIA's open-meeting provision, and the § 10004(h)(7) exclusion. A request for documents held by an ethics committee would be a separate records question that this opinion does not reach.

Is there a parallel exemption for the Senate Ethics Committee?
The opinion concerns the House Ethics Committee. The statutory text it quotes excludes ethics committees "specifically enumerated and created by Resolution of the House of Representatives or Senate," language that on its face reaches a Senate ethics committee as well as a House one.

Background and statutory framework

Delaware's FOIA is at 29 Del. C. §§ 10001-10007. Section 10004 sets meeting requirements for public bodies. Subsection 10004(h) lists the categories of public bodies whose meetings are exempt from those requirements. Subsection 10004(h)(7) addresses legislative-branch bodies, with multiple carve-backs and one carve-out.

29 Del. C. § 10004(h)(7) reads (in pertinent part): public bodies "within the legislative branch of the state government other than the House of Representatives, the Senate, the Joint Finance Committee, the Joint Committee on Capital Improvement, the Joint Legislative Oversight and Sunset Committee, Legislative Council, committees, excluding ethics committees, specifically enumerated and created by Resolution of the House of Representatives or Senate or task forces specifically enumerated and created by Resolution of the House of Representatives or Senate." The phrase "excluding ethics committees" is what the Committee relied on.

29 Del. C. § 10005 is the petition provision the opinion invokes. The AG's authority within a petition is bounded by FOIA itself; the opinion treats broader constitutional questions as outside this proceeding.

House Resolution 4 (referenced by the petitioner) is the procedural framework establishing the Committee. It is a House internal rule, not a statute, and is amended by the chamber.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10004: meeting requirements for public bodies
• 29 Del. C. § 10004(h)(7): legislative-branch exclusion with ethics-committee carve-out
• 29 Del. C. § 10005: citizen petition authority limited to FOIA violations
• House Resolution 4 (Delaware General Assembly): Committee procedural framework

Source

• Landing page: https://attorneygeneral.delaware.gov/2021/10/06/21-ib24-10-06-2021-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-ethics-committee-house-of-representatives-delaware-general-assembly/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/10/Attorney-General-Opinion-No.-21-IB24.pdf

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-IB24
October 6, 2021

VIA EMAIL
Randall Chase
Associated Press
[email protected]

RE:

FOIA Petition Regarding the Ethics Committee, House of Representatives,
Delaware General Assembly

Dear Mr. Chase:
We write in response to your correspondence alleging that the Ethics Committee of the
House of Representatives of the Delaware General Assembly ("Committee") 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 explained below, we conclude that the Committee has
not violated FOIA as alleged.

BACKGROUND
The Committee provided public notice of a meeting scheduled for September 10, 2021.
The agenda for this meeting indicated that the Committee would "discuss executive business
before the [C]ommittee" and that the meeting would be closed to the public. You filed a Petition
alleging that FOIA requires this Committee to comply with the open meeting requirements of
FOIA. You argue that any public body planning an executive session must state the reason for the
executive session on its agenda and take a public vote whether to hold an executive session. In
addition, you ask this Office to "make a determination on whether the restrictions on public
disclosure and public statements related to the activities of the House Ethics Committee as outlined
in House Resolution 4 constitute a prior restraint on speech by the government."

The Committee replied to your Petition on September 17, 2021 ("Response"). The
Committee asserts that 29 Del. C. § 10004(h)(7) exempts ethics committees of the General
Assembly from the open meeting requirements of FOIA. In addition, the Committee states that
the question regarding the prior restraint on speech is not an appropriate issue to consider in a
FOIA petition.

DISCUSSION
Section 10004 of FOIA sets forth certain requirements for the meetings of public bodies.
However, this section excludes several proceedings from these requirements, including the
proceedings of "[p]ublic bodies within the legislative branch of the state government other than
the House of Representatives, the Senate, the Joint Finance Committee, the Joint Committee on
Capital Improvement, the Joint Legislative Oversight and Sunset Committee, Legislative Council,
committees, excluding ethics committees, specifically enumerated and created by Resolution of
the House of Representatives or Senate or task forces specifically enumerated and created by
Resolution of the House of Representatives or Senate." As this provision expressly excludes the
proceedings of ethics committees of the General Assembly from the requirements of Section
10004, we find that the Committee has not violated FOIA by failing to meet any of this section's
requirements. The remaining issue in the Petition regarding whether certain restrictions in a House
resolution constitute a prior restraint on speech by the government is outside the purview of this
Office's statutory authority to determine.

CONCLUSION
Based on the foregoing, we determine that the Committee has not violated FOIA as alleged
in the Petition.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved by:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Karen Lantz, House Majority Attorney and Ethics Committee Staff