If a Delaware charter school's Board committee gets renamed as a 'team' that includes some former committee members, does the rebranded group escape FOIA's open-meeting requirements?

Official title

22-IB04 03/03/2022 FOIA Opinion Letter to Jayshree Tailor, Nancy Fan and Jenn Ruebush re: FOIA Complaint Concerning the Charter School of Wilmington, Inc.

Plain-English summary

The Charter School of Wilmington, Inc. (CSW) operates as a Delaware charter school chartered by the Red Clay Consolidated School District. As a charter school, its Board is a public body subject to FOIA, and Board-created committees are also public bodies.

Two FOIA petitions were filed in early 2022. The first (Tailor, December 3, 2021 Advancement Committee meeting): the petitioner alleged that the CSW's Advancement Committee held a meeting on December 3, 2021 without public notice or minutes, with three Board members in attendance. The second (Tailor, Fan, Ruebush, January 20, 2022 Finance Committee meeting): the petitioners alleged that the Finance Committee met on January 20, 2022 without notice or minutes, and that this followed a longstanding pattern of similar lapses.

CSW's responses split.

On the Advancement Committee: CSW argued the December 3 meeting was not a "Committee" meeting at all. The Advancement Committee was being restructured. The December 3 group was an "Advancement Team" of CSW officials and some former Advancement Committee members. CSW called this an "administrative staff meeting," which it said was not subject to FOIA. CSW also committed to limit Advancement Team participants to avoid quorum overlap with the prior Committee.

On the Finance Committee: CSW admitted the Finance Committee is a public body and that its January 20, 2022 meeting failed FOIA's open-meeting requirements. CSW argued no remediation was needed because no action was taken at the meeting; CSW also committed to FOIA training and proper future notice.

The AG ruled for the petitioners on both. Section 10002(k) defines a "public body" as a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," including "committee, group, panel, council, or any other entity or body" established by a public official, body, or agency, that either uses public funds, expends public funds, or is charged to advise or make reports.

The Advancement Team failed CSW's attempt to characterize it as administrative staff. It was discussing the same public business as the prior Advancement Committee, with overlap in members. CSW's response did not provide sufficient evidentiary support to establish that the Team was meaningfully different from the Committee. The AG found the December 3 meeting violated FOIA.

The Finance Committee CSW admitted on the merits. Even though no action was taken, the open-meeting rules still applied (notice, agenda, minutes are required regardless of whether action is taken).

For remediation, the AG recommended CSW prepare minutes from existing notes and materials for both meetings to the extent reasonably practicable, make them available for public inspection, and engage in FOIA training. AG opinions 21-IB16 (July 6, 2021) and 19-IB09 (Feb. 22, 2019) had previously imposed similar minute-creation remediation.

What this means for you

For Delaware charter schools. Two specific lessons.
1. Renaming a "Committee" as a "Team" or "Working Group" does not change its FOIA status. The substance of the body's role (public business, advisory function, expenditure of public funds) controls. If your old Advancement Committee discussed advancement strategy and the new Advancement Team discusses the same thing with overlapping membership, it is still a public body.
2. Even if no action is taken at a Committee meeting, FOIA's open-meeting requirements apply: notice, agenda, minutes. The "no action, no harm" defense fails. The public has a right to observe deliberation, not just final votes.

For public-body attorneys advising bodies considering restructuring. When you restructure a committee, document the substantive change. If the new body has a fundamentally different scope, membership, or function, document that on the record. If the new body discusses the same public business with overlapping members, it remains a public body. Do not rely on a name change to escape FOIA; that argument lost in 22-IB04 and will lose in future cases.

For Delaware charter school parents and advocates monitoring board governance. Ask for the bylaws and committee structure. Watch for "team" or "working group" labels that quietly replace formerly-named committees. If you suspect the relabeling is to avoid FOIA, file a petition with specific allegations about the body's composition, function, and meeting history. AG 22-IB04 is your authority.

For other Delaware public bodies that are technically structured as nonprofits or LLCs. Charter schools (organized under Delaware nonprofit law) are subject to FOIA because they perform public functions and receive public funds. Hospital authorities, redevelopment authorities, and various public-private partnership entities are typically also subject to FOIA when they meet § 10002(k)'s two-part test. The "we're a private nonprofit" argument generally fails for entities funded by State or local government to perform public functions.

Common questions

What's the two-part test for public-body status under § 10002(k)?
First part: is the entity a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," including a "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"? Second part: is the entity supported in whole or in part by public funds, does it expend public funds, or is it impliedly or specifically charged by another public body to advise or make reports? If yes to both, it's a public body subject to FOIA.

Why isn't an "administrative staff meeting" a public body?
Pure administrative staff meetings of internal employees implementing already-decided policy are not subject to FOIA. The FOIA reach is to bodies with deliberative or advisory roles. A meeting of three teachers planning curriculum is not a public body. A meeting of three Board members planning advancement strategy is. The line is between deliberation about public business and pure administration.

Why didn't CSW's commitment to limit participants going forward fix the past violation?
Forward-looking commitments don't remedy past violations. The petitioners had asked about the December 3, 2021 meeting that already happened without notice or minutes. CSW's promise to do better in the future is welcome but separate.

What's the recommended remediation for past meetings without minutes?
"Prepare minutes . . . from existing notes and materials to the extent reasonably practicable and make them available for public inspection." This is the AG's standard cure (AG 21-IB16, AG 19-IB09). The body should reconstruct what happened from contemporaneous notes, member recollections, and any available recordings. Minutes need not be perfect; they need to capture the substance.

Did CSW have a longstanding pattern, as alleged?
The petitioners alleged a "longstanding pattern" supported by an April 22, 2021 meeting also without minutes, and a separate concerns-letter to CSW and Red Clay. The AG opinion does not develop this; it focused on the two specific meetings. A more aggressive remedy (like an injunction or a finding of pattern violation) would have required more developed evidence.

Are charter schools across Delaware subject to the same FOIA rules?
Yes. Delaware charter schools are public bodies under FOIA when their Boards or Board-created committees meet. The Board is a public body under § 10002(k); committees of the Board are public bodies under § 10002(k); administrative committees of the principal are typically not public bodies (because they don't make policy decisions on behalf of the school).

Background and statutory framework

29 Del. C. § 10002(k) defines "public body."

29 Del. C. § 10004 establishes meeting requirements. Section 10004(f) governs minutes.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del. (Del. Dec. 6, 2021), a sworn affidavit may be required.

29 Del. C. § 10005(e) limits the AG's FOIA petition jurisdiction.

The "name change doesn't avoid FOIA" principle is well-established in AG opinion practice. AG 18-IB28 (Jun. 1, 2018) is the leading two-part-test articulation. The minute-creation remediation comes from AG 21-IB16 and AG 19-IB09.

Citations

• 29 Del. C. § 10002(k): public body definition
• 29 Del. C. § 10004, § 10004(f): meeting requirements; minutes
• 29 Del. C. § 10005, § 10005(c), § 10005(e): petition; burden; jurisdiction
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)
• Del. Op. Att'y Gen. 18-IB28 (Jun. 1, 2018): public body two-part test
• Del. Op. Att'y Gen. 21-IB16 (July 6, 2021): minute-creation remediation
• Del. Op. Att'y Gen. 19-IB09 (Feb. 22, 2019): minute-creation remediation

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/03/03/22-ib04-03-03-2022-foia-opinion-letter-to-jayshree-tailor-nancy-fan-and-jenn-ruebush-re-foia-complaint-concerning-the-charter-school-of-wilmington-inc/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/03/Attorney-General-Opinion-No.-22-IB04.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. 22-IB04
March 3, 2022

VIA EMAIL
Jayshree Tailor
[email protected]
Nancy Fan
[email protected]
Jenn Ruebush
[email protected]

RE: Two FOIA Petitions Regarding the Charter School of Wilmington, Inc.

Dear Jayshree Tailor, Nancy Fan, and Jenn Ruebush:
We write in response to your communications alleging that the Charter School of Wilmington, Inc. and its Board of Directors (collectively, "the CSW") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Jayshree Tailor submitted correspondence asserting that the CSW violated FOIA in conducting its December 3, 2021 Advancement Committee meeting ("Advancement Committee Petition"), and approximately a week later, Jayshree Tailor, Nancy Fan, and Jenn Ruebush submitted correspondence alleging that the CSW also violated FOIA in holding its January 20, 2022 Finance Committee meeting ("Finance Committee Petition") (collectively, "Petitions"). We treat both communications as Petitions for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur and issue this combined opinion to address both Petitions.

For the reasons set forth below, we find that the CSW violated FOIA and recommend that the CSW, in accordance with FOIA, prepare minutes of the above-referenced meetings to the extent reasonably practicable and make those minutes available for public inspection. In addition, we encourage the appropriate CSW staff to engage in FOIA training.

BACKGROUND
The first Petition alleges that the Advancement Committee, a committee of the Board, held a meeting on December 3, 2021 without providing public notice or meeting minutes. The Petition included a copy of the invitation to the virtual meeting for the "Advancement Team" and alleges that there were three CSW board members in attendance, according to your sources. In further support of the allegations, the Petition also included excerpts from the Board's website showing that the Board of Directors' webpage contains a reference to the Advancement Committee noting that the Committee is being restructured, and showing that no updated minutes have been posted to the site since February 2021.

The CSW's counsel provided a response to the Advancement Committee Petition on February 11, 2022 ("Response"). The CSW admits that the former Advancement Committee, as a Board-created committee, was a public body subject to FOIA but argues that the group that met to discuss advancement issues on December 3, 2021 is not a public body. Consistent with its website's notation, the CSW asserts that the Board's Advancement Committee is being restructured, and CSW officials and some former members of the Advancement Committee met to discuss advancement issues in general on December 3, 2021. The CSW argues that this meeting of what it is calling its "Advancement Team" constitutes an administrative staff meeting, which is not subject to FOIA. If the Advancement Committee is reconstituted in the future, the CSW asserts that its activities will be conducted in accordance with FOIA's open meeting requirements. The CSW also acknowledges that the Advancement Team could be perceived as the Committee and commits to limit the participants in the meetings to avoid an overlap with a quorum of the Committee as previously constituted.

The second Petition alleges that the Board's Finance Committee met on January 20, 2022 without any public notice or minutes provided. In support of this contention, the Petition included a copy of the meeting invitation, excerpts of the CSW webpage showing no Finance Committee meeting information since October 2020 and a reference to the agenda and minutes webpage "showing that a discussion of this meeting took place subsequently at the [January 25, 2022] CSW Board Meeting," an email with a photograph showing that the lack of public notice has occurred in the past, including an April 22, 2021 meeting with no minutes, an email in which a group of alumni and parents advised the Board about their concerns with no public notice for meetings, and a copy of the letter sent to CSW and Red Clay Consolidated School District by this group outlining their concerns about the lack of public notice. The petitioners suggest that the lack of notice and minutes may constitute a longstanding pattern by the Committee.

The Board's counsel provided a response on February 17, 2022 ("Response"). The Board admits that the Finance Committee, as a Board-created committee, is a public body under the meaning of FOIA and that its January 20, 2022 Finance Committee meeting failed to meet the open meeting requirements of FOIA. However, as no action was taken at this meeting, the Board asserts that no remedial action is necessary. In the future, the Board states that it "will be sure to properly notice Committee meetings and provide minutes of those meetings in compliance with FOIA." Further, CSW commits to provide FOIA training for its staff.

DISCUSSION
The burden of proof is on the public body regarding any failure to comply with the FOIA statute. A sworn affidavit may be required to meet that burden. The Advancement Committee Petition questions whether a new group that discusses advancement issues is a public body and whether this group has been meeting outside public view in violation of the open meeting requirements of FOIA. We find that the CSW has not met its burden to demonstrate that this new group is excluded from FOIA's open meeting requirements.

FOIA mandates that public bodies meet specific requirements related to meetings, including advance notice and the preparation of meeting minutes. 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. 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, . . . 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." 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." The Board's Response to the Advancement Committee Petition does not provide sufficient evidentiary support to determine that the new group meeting to discuss advancement issues is not a public body. The new group is discussing the same public business as the prior public body, and some of the same people are members of both groups. The CSW asserts it was an administrative meeting with staff but provides no further explanation as to how this new group is so significantly different than the previous public body that it should not be considered a public body under the two-part test and subject to FOIA's open meeting requirements. Accordingly, on this record, we are compelled to find that the CSW is in violation of FOIA with respect to its December 3, 2021 meeting.

Regarding the Finance Committee Petition, the Board admits that this committee is a public body and it did not follow open meeting requirements in conducting its January 20, 2022 meeting. As such, we determine that the Board also violated FOIA with respect to this meeting. For these two violations, we recommend that the CSW, in accordance with FOIA, prepare meeting minutes for the two above-referenced meetings from existing notes and materials to the extent reasonably practicable and make them available for public inspection. In addition, consistent with the suggestion in the Response, we encourage the appropriate CSW staff to engage in FOIA training.

CONCLUSION
For the reasons set forth above, we conclude that the CSW and its Board violated FOIA by failing to demonstrate that the above-referenced meetings complied with FOIA's open meeting requirements.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: James D. Taylor, Jr., Attorney for the Charter School of Wilmington, Inc. and its Board of Directors