Does a Delaware General Assembly committee have to provide an in-person 'anchor location' for a virtual hearing, and can a witness file a FOIA petition if she gets cut off after testifying?
Official title
22-IB25 07/20/2022 FOIA Opinion Letter to Janice Lorrah re: FOIA Complaint Concerning the Senate Elections & Government Affairs Committee
Plain-English summary
The Senate Elections and Government Affairs Committee of the 151st General Assembly held a fully virtual meeting on June 15, 2022, with no in-person anchor location. After giving testimony on a proposed bill, Janice Lorrah's connection dropped. When she tried to reconnect, she got a "removed by host" message. She rejoined by phone but the meeting was wrapping up.
Lorrah filed a FOIA petition with three claims: (1) the Committee violated 29 Del. C. § 10006A by holding a fully virtual meeting without an anchor location, because she believed Delaware was no longer in a "state of emergency"; (2) the Committee voted on bills outside the meeting (presumably by email or backer-signing) instead of voting publicly during the meeting; and (3) she was wrongfully removed from the meeting after testifying.
The Committee Chair responded with two structural arguments: (1) under News-Journal Co. v. Boulden (Del. Ch. 1978), the AG cannot enforce one General Assembly's procedural statutes against a later General Assembly that adopted its own rules under the constitutional grant of self-governance; and (2) on the merits of the only § 10006A question, the Governor's March 1, 2022 public health emergency order was still in effect during the June 15 meeting, and that order is the kind of "state of emergency" that allows virtual-only meetings under § 10006A.
The AG agreed on both fronts. The first two claims (open-vote requirement and meetings open to the public requirement) were enacted by earlier General Assemblies (60 Del. Laws ch. 641 in 1977 and 65 Del. Laws ch. 191 in 1985); under Boulden, the 151st General Assembly's House Concurrent Resolution No. 1 took precedence and the AG cannot police whether the 151st followed those earlier procedural rules. The "removed from meeting" claim was effectively the same problem; the staff affidavit said the legislative assistant managing the virtual meeting inadvertently removed Lorrah after her testimony, and the AG accepted the apology under oath.
For the § 10006A question, the AG noted that even if the Boulden problem did not bar consideration, the Governor's public health emergency order was in effect on June 15, 2022 and that satisfied § 10006A's "state of emergency" condition for skipping the anchor location. AG 22-IB10 (Apr. 14, 2022) had previously held that the Governor's March 1, 2022 public health emergency order qualified.
What this means for you
For Delaware citizens trying to enforce FOIA against the General Assembly. Boulden is a structural barrier. The General Assembly enjoys a constitutional power to set its own procedural rules, and one General Assembly cannot bind the next. The AG cannot order a Senate committee to follow procedural FOIA rules from a prior General Assembly. Practical paths: (1) raise the issue with your senator and pursue change through legislation in the next General Assembly; (2) seek injunctive relief in the Court of Chancery, which has subject matter jurisdiction (though it will face the same Boulden barrier); (3) raise the issue through the General Assembly's own ethics or rules committee.
For witnesses giving public comment in virtual legislative hearings. Test your connection in advance. Designate a backup phone number. If you are removed from the meeting after testifying and the chair has not invited public comment to be confined to a window, write the chair and committee staff requesting confirmation of why and ask for the meeting to be re-opened to questions. Record the time of disconnection and any "removed by host" messages, in case you need to file a complaint later.
For senators, representatives, and committee chairs running virtual hearings. When a public-comment witness drops off the meeting, the meeting host should make a reasonable effort to reconnect them. If staff inadvertently removes a witness instead of unmuting another speaker, fix it on the record and (as Lorrah's case shows) provide a sworn affidavit explaining the error if a FOIA petition results. The Committee here got a clean dismissal because the affidavit was clear and contrite.
For staff supporting virtual legislative meetings. Build a host-controls runbook: how to mute and unmute, how to spotlight witnesses, what the consequence of "remove participant" is (it usually adds the participant to a banned list and prevents reconnection on the same device). Train multiple staff. Errors are recoverable if documented.
Common questions
What's the Boulden doctrine?
News-Journal Co. v. Boulden (Del. Ch. 1978) held that one General Assembly cannot, by statute, bind a later General Assembly's procedural choices in a way enforceable by the courts. The Delaware Constitution gives each chamber the power to determine the rules of its own proceedings. So when a 1977 statute says committee meetings must be open and votes must be in public, but a 2021 General Assembly adopts House Concurrent Resolution No. 1 authorizing virtual hearings during emergencies, courts will not police whether the later body followed the earlier statute.
Doesn't FOIA still apply to General Assembly committees?
The General Assembly is, in many respects, subject to FOIA. But the AG and the courts will be careful about which FOIA provisions are enforceable as against the General Assembly's own internal procedures. Section 10006A (virtual meetings) was enacted by the 151st General Assembly itself, so the AG could in principle reach a § 10006A claim. Sections 10004's open-meeting and open-vote requirements were enacted earlier, and Boulden barred the AG from enforcing them in this context.
What's an "anchor location" under § 10006A?
Before the COVID-era amendments, public bodies' meetings in Delaware had to be held with the public physically present in a designated location. Section 10006A was added in 2021 to permit fully virtual meetings under specified conditions. Outside a state of emergency, a virtual meeting must have an "anchor location" where the public can physically appear. During a state of emergency, the anchor location requirement is relaxed.
Was Delaware in a "state of emergency" on June 15, 2022?
The Governor's COVID-19 state of emergency had been lifted in 2021, but on March 1, 2022 the Governor declared a public health emergency related to monkeypox / pediatric vaccine readiness, and that order was repeatedly extended. AG 22-IB10 (Apr. 14, 2022) held that the public health emergency order qualified as a "state of emergency" for § 10006A purposes. By June 15, 2022 the order was still in effect under the Third Extension of the Public Health Emergency.
What's House Concurrent Resolution No. 1?
The 151st General Assembly adopted HCR No. 1 invoking its own emergency powers under the Delaware Constitution and authorizing the Speaker of the House and President Pro Tempore of the Senate to issue notice that the General Assembly and its committees may conduct virtual meetings during an emergency. Notice was issued in January 2021. The Committee argued HCR No. 1 controls regardless of § 10006A.
Can I sue in court if the AG can't help?
You can try, but the same Boulden barrier applies. The Court of Chancery in Boulden refused injunctive relief because there is "no constitutional prohibition against a party caucus being closed to the public," and the court would not enforce a prior General Assembly's procedural statute against the current one. Voter accountability ("[d]issatisfaction with the performance of their duties... is a matter between them and the voters") was the court's prescribed remedy.
Background and statutory framework
29 Del. C. § 10006A was enacted by the 151st General Assembly in June 2021. It establishes the framework for virtual public meetings, including the anchor-location requirement and the "state of emergency" exception.
29 Del. C. § 10004 (open meetings) was enacted in 1977 (60 Del. Laws ch. 641). The open-vote requirement was enacted in 1985 (65 Del. Laws ch. 191). Both predate the 151st General Assembly's HCR No. 1 and so fall under the Boulden barrier in this context.
29 Del. C. § 10005(e) limits the AG's FOIA petition jurisdiction to "whether a violation of this chapter has occurred or is about to occur." When the question is whether a later General Assembly is bound by an earlier General Assembly's procedural rules, the AG cannot resolve it.
The Delaware Constitution gives each chamber authority to determine its own rules. Senate Rule 50 incorporates Mason's Manual of Legislative Procedure for parliamentary procedure not otherwise covered.
Citations
- 29 Del. C. § 10004: open meetings
- 29 Del. C. § 10005, § 10005(e): petition jurisdiction
- 29 Del. C. § 10006A: virtual meetings
- 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
- 60 Del. Laws ch. 641, § 1 (1977): original FOIA enactment
- 65 Del. Laws ch. 191, § 10 (1985): open-vote provision
- News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978)
- Del. Op. Att'y Gen. 22-IB10 (Apr. 14, 2022): public health emergency = state of emergency
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/07/20/22-ib25-07-20-2022-foia-opinion-letter-to-janice-lorrah-re-foia-complaint-concerning-the-senate-elections-government-affairs-committee/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/07/Attorney-General-Opinion-No.-22-IB25.pdf
Original opinion text
DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
KATHLEEN JENNINGS
ATTORNEY GENERAL
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-IB25
July 20, 2022
VIA EMAIL
Janice Lorrah
[email protected]
RE: FOIA Petition Regarding the Elections and Government Affairs Committee, Senate, Delaware General Assembly
Dear Ms. Lorrah:
We write in response to your correspondence alleging that the Elections and Government Affairs Committee of the Senate 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 no violation of FOIA has occurred.
BACKGROUND
The Committee conducted a fully virtual public meeting without an anchor location on June 15, 2022. The Petition alleges that three violations of FOIA occurred at this meeting. First, you argue that the Committee violated FOIA by conducting the meeting without an anchor location. As you believe that Delaware is no longer under a Governor's "state of emergency" order, you allege that 29 Del. C. § 10006A requires the Committee to have an anchor location where you could appear in person. Second, you state that the Committee did not vote on the four bills under consideration at the meeting, and you believe that the Committee votes privately by email. You maintain the Committee's voting outside of the public meeting violates FOIA's requirement that the public be able to monitor a public body's vote. Third, you allege that you were improperly removed from the meeting without cause in violation of FOIA. After giving testimony on a proposed bill, your connection to the meeting was dropped, and when you tried to reconnect, you received a message that you were removed by the meeting host. By the time you were able to rejoin by telephone, the meeting was in the process of concluding. Based on all of this, you contend that the Committee should be found in violation of FOIA.
The Committee's Chair replied to your Petition on behalf of the Committee, on June 29, 2022 ("Response"). The Committee asserts that the Petition's three claims are without merit. First, the Committee states that in accordance with the News-Journal Co. v. Boulden case and the Delaware Constitution, each House of the General Assembly determines the rules of its proceedings. To do so, the 151st General Assembly enacted House Concurrent Resolution No. 1, in which it invoked its own emergency powers under the Delaware Constitution and declared that the Speaker of the House and President Pro Tempore of the Senate are authorized to issue notice that the General Assembly and its legislative committees may conduct a virtual meeting during an emergency. The Committee states that such notice was issued in January 2021 and remains in effect and consistent with Boulden, the subsequent enactment of Section 10006A in June 2021 did not modify rules that the 151st General Assembly adopted and will not control the rules governing the General Assembly proceedings that future General Assemblies adopt. In addition, the Committee argues that as FOIA is a general statute and the General Assembly's House Concurrent Resolution No. 1 is specific legislation, the more specific Resolution No. 1 prevails. This canon of construction, the Committee argues, is consistent with Mason's Manual of Legislative Procedure, which specifically lists the sources from which rules of legislative procedure are derived and provides if there is a conflict, the "adopted rules," prevail over the statutory provisions. The Committee asserts that Mason's Manual of Legislative Procedure decides any questions of parliamentary procedure not specifically covered by the Rules of the Senate or the Delaware Constitution, per Senate Rule 50. Alternatively, the Committee contends that even if Section 10006A applied to its committee meetings, the Governor's public health emergency order in place constitutes a "state of emergency" under FOIA, and a virtual format without an anchor location was therefore permitted under Section 10006A for its June 15, 2022 meeting.
Second, the Committee explains that it has no requirement to vote during a hearing. Noting again that the Constitution permits each chamber to determine its rules of its proceedings, the Committee states that the Senate of the 151st General Assembly adopted Senate Rule 46, which states that for a bill to be released from standing committee, a majority of the members of the standing committee must sign the backer of the bill. As the courts have held that the specific mandate prevails over any general requirements to the extent of any conflict, the Committee argues that Senate Rule 46 prevails over the general requirements of FOIA, and also because of the order set by Mason's Manual, the Senate rules prevail over the FOIA statute. Finally, the Committee asserts that the legislative assistant managing the virtual meeting inadvertently removed you from the meeting after your testimony as an expert and attached the assistant's affidavit swearing to the circumstances of this error.
DISCUSSION
The preliminary question in this matter is whether any of these allegations are appropriately considered in the context of the FOIA petition process. For the reasons set forth below, our Office lacks any legal basis to decide the majority of your claims.
In Boulden, the plaintiffs requested injunctive relief to prevent twenty-five State Representatives from privately meeting in caucus, because this number of Representatives, constituting a majority of House members, created a quorum of the House of Representatives, and FOIA's open meeting law required such meetings be publicly held. The Court of Chancery determined that the plaintiffs had failed to set forth a cause of action on which injunctive relief can be granted, because the Court refused to accept that "one General Assembly, by statute, can vest this Court with the authority to control the manner in which a subsequent General Assembly exercises the lawmaking power reposed solely in it by the Constitution." The Court stated that each General Assembly has a life span of two years and declined to find that the 128th General Assembly could, by statute, empower the Court to void legislative action taken by the 129th General Assembly whenever the latter has failed to meet procedural standards for lawmaking established by the 128th General Assembly. Noting the Delaware constitutional provision allowing each House to determine the rules of its proceedings, the Court stated "[s]ince there is no constitutional prohibition against a party caucus being closed to the public, even when those in attendance would constitute a quorum of one of the Houses, I see no basis for this Court to attempt to enforce such a prohibition purportedly created by the statutory enactment of a prior legislative body." Rather, the Court concluded that "[d]issatisfaction with the performance of their duties by these defendants is a matter between them and the voters."
This Petition alleges violations of three sections of FOIA: 1) Section 10004's requirement that votes at a meeting occur in public session; 2) Section 10004's general requirement that meetings, unless otherwise authorized, be open to the public; and 3) Section 10006A's requirements for virtual meetings. The Boulden case does not allow our consideration of the first two violations; the 151st General Assembly enacted its own rules for conducting these committee meetings and Section 10004's requirements at issue here were adopted by earlier assemblies. Under Boulden's holding, this Office may not determine whether a later General Assembly has failed to follow an earlier assembly's procedural standards when exercising its lawmaking powers.
Unlike the Section 10004 requirements, the 151st General Assembly adopted Section 10006A, which describes the circumstances in which public bodies may convene for a virtual meeting. While the Petition argues that it was a violation of Section 10006A to hold the Committee meeting solely in virtual format without an anchor location, the Committee asserts that its own procedures enacted pursuant to House Concurrent Resolution No. 1 that do not require an anchor location prevail over Section 10006A requirements. However, determining whether the Committee is obliged to follow its adopted procedures or Section 10006A would require this Office to render a decision on the scope of the laws applicable to the General Assembly, and thus, this matter is also outside this Office's authority.
Assuming arguendo this question was appropriate for resolution by this Office, this Office has previously found that the Governor's March 1, 2022 public health emergency order qualifies as an order establishing a "state of emergency" for purposes of Section 10006A, and under that order, anchor locations are not required for virtual meetings. The Governor's public health emergency order was in effect at the time of this June 15, 2022 Committee meeting. Thus, Section 10006A would allow the Committee to hold its June 15, 2022 virtual meeting without an anchor location.
CONCLUSION
Based on the foregoing, we determine that the majority of the Petition's allegations are not appropriate for resolution. However, the Committee did not violate FOIA by holding a virtual meeting without an anchor location.
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: Senator Kyle Evans Gay, Chair, Senate Elections and Government Affairs Committee