If a Delaware public body recorded its meeting, can I get the recording even after a related lawsuit is filed?

Official title

22-IB42 11/16/2022 FOIA Opinion Letter to Thomas Pledgie re: FOIA Complaint Concerning the State Employee Benefits Committee of the Delaware Department of Human Resources

Plain-English summary

Thomas Pledgie asked the State Employee Benefits Committee (SEBC) for the recording of its September 19, 2022 meeting, where the agenda item "Medicare Advantage Implementation Updates/OE Planning" was discussed in open session. SEBC's FOIA coordinator denied access on October 7, 2022, citing the pending or potential litigation exemption in 29 Del. C. § 10002(o)(9). The Committee told Pledgie it could offer minutes once approved but not the recording. The Committee's response noted that after the meeting, RISE Delaware sued the Committee to halt the Medicare Advantage Plan, and a stay had issued. The Committee argued the recording "pertains to" that pending litigation and that FOIA does not require it to record meetings in the first place.

The AG ruled the Committee violated FOIA. While FOIA does not require public bodies to record meetings (with a limited Section 10006A exception for elected bodies), once a public body creates and maintains a recording of a public meeting, that recording is treated like minutes under § 10004(f). The Court of Chancery in Chem. Indus. Council held that verbatim recordings are "simply another form of verbatim recording" of meetings and must be released subject to the same rules as written minutes. The Medicare Advantage discussion was on the open-session agenda, not in executive session, so the verbatim recording is releasable. The pending litigation exemption did not change the analysis because the recording captures public proceedings that the public has a right to observe whether or not litigation is later filed. The AG recommended the Committee provide access within FOIA's response timeframe.

What this means for you

If you are a Delaware state employee or retiree

You have a right to the recording of an SEBC meeting where Medicare Advantage was discussed in open session. Send a fresh FOIA request citing this opinion and 29 Del. C. § 10004(f). If the Committee resists again, file a petition with the AG.

If you are a public body that records meetings

Once you create a recording, you cannot bury it just because a related lawsuit was later filed. Treat the recording as you would written minutes: redact only the portions that pertain to a lawful executive-session purpose. If the entire meeting was in open session, the entire recording is public.

If you are a public body considering whether to record

There is no FOIA obligation to record (subject to the elected-body Section 10006A nuance), but if you do record, the recording becomes a public record. If recording creates burdens you do not want, consider whether you actually need it. Some bodies record for accuracy in drafting minutes and then dispose of the recording once the minutes are approved; that disposal must follow the State's records retention rules, which are outside FOIA.

If you are a litigant in a related lawsuit

You can use FOIA to get a recording of an open-session public meeting even when the same subject matter is in active litigation. The pending-litigation exemption protects materials gathered for or related to litigation, not the underlying public-meeting record that anyone in the room could have observed. For closed-session executive deliberations on the litigation, the exemption does apply.

Common questions

Doesn't the pending litigation exemption cover anything related to the lawsuit?

No, not anything. The exemption covers records that "pertain to" the litigation and are "not records of any court." Public-meeting recordings are different in character: they document an event that the public was entitled to attend in real time. Allowing the litigation exemption to bury the recording would convert FOIA into a litigation gag on the public's right to observe its government in action.

So if SEBC had not recorded the meeting, none of this would matter?

Correct. The AG's ruling is conditional: once the recording exists, it is releasable. SEBC could not be forced to create a recording of a meeting it had not recorded. But once the recording exists, FOIA's treatment of it follows § 10004(f).

What about executive session portions?

If a meeting includes both open and executive-session portions, the recording must be released for the open portions. Executive-session portions can be withheld to the extent disclosure would defeat the lawful purpose of the executive session, per the Chem. Indus. Council framework, but only for as long as that purpose is alive. The September 19 SEBC meeting's "Medicare Advantage Implementation Updates" was an open-session item, so the discussion captured by the recording is public.

What was the Medicare Advantage controversy about?

In summer 2022, Delaware proposed switching state retiree health coverage from a traditional Medicare supplement to a Medicare Advantage plan. RISE Delaware, a retiree advocacy group, filed suit alleging the change was made without proper procedure. The court stayed implementation of the plan pending a final decision. The September 19 meeting included implementation updates, which is why retirees and the broader public wanted the recording.

Background and statutory framework

29 Del. C. § 10003(a) gives citizens reasonable access to public records. 29 Del. C. § 10002(o) defines "public record" broadly: "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business," regardless of physical form. § 10002(o)(9) excludes records pertaining to pending or potential litigation that are not records of any court.

29 Del. C. § 10004(f) governs minutes. Public bodies must maintain meeting minutes recording members present, votes taken, and actions agreed upon. Those minutes must be made available for public inspection. Executive session minutes may be withheld only as long as disclosure would defeat the lawful purpose of the executive session.

The Court of Chancery in Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994), held that tape recordings of meetings are equivalent to verbatim minutes for FOIA purposes: a body must release them, redacting only the portions that specifically concern a lawful executive-session purpose.

29 Del. C. § 10006A contains a limited exception requiring elected bodies to record meetings in some circumstances; the AG noted this exception while clarifying that it did not require SEBC (a non-elected body) to record. SEBC's burden under § 10005(c) and Judicial Watch v. Univ. of Del. was not met because the recording's existence as a verbatim record of public business overrides the litigation exemption claim.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(o) (definition of public record)
• 29 Del. C. § 10002(o)(9) (pending litigation exemption)
• 29 Del. C. § 10003 (records access)
• 29 Del. C. § 10003(a) (right of access)
• 29 Del. C. § 10004 (open meetings)
• 29 Del. C. § 10004(f) (meeting minutes)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof)
• 29 Del. C. § 10006A (virtual meeting recording exception)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/16/22-ib42-11-16-2022-foia-opinion-letter-to-thomas-pledgie-re-foia-complaint-concerning-the-state-employee-benefits-committee-of-the-delaware-department-of-human-resources/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB42.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB42
November 16, 2022
VIA EMAIL
Thomas Pledgie
[email protected]

RE:

FOIA Petition Regarding the State Employee Benefits Committee

Dear Mr. Pledgie:

We write regarding your correspondence alleging that the State Employee Benefits Committee of the Delaware Department of Human Resources ("DHR") 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we conclude that the Committee violated FOIA by denying access to the September 19, 2022 meeting recording you requested.

BACKGROUND

On September 20, 2022, you submitted a request seeking the recording of the September 19, 2022 Committee meeting.[1] In response, the DHR offered meeting minutes when they are approved, but you reiterated that you would like to receive the recording. The DHR's FOIA coordinator responded to your request on October 7, 2022, denying access to the recording because it falls under FOIA's exemption for "any records pertaining to pending or potential litigation that are not records of any court" in Section 10002(o)(9). You again followed up, asking whether there are any recordings of the meetings of the Committee and its subcommittees from the last two years that would be made available and to what litigation DHR was referring. DHR did not respond as of the date of your Petition.

The Petition alleges that you have been refused access to any existing meeting recordings for the Committee or its subcommittees, and these recordings would allow access to the public meeting for the members of the public that were not able to attend. Such a refusal, you allege, contradicts FOIA's requirement that meetings be open to the public.

The Committee, through its counsel, responded on October 24, 2022 to the Petition ("Response"). The September 19, 2022 meeting agenda included the item, "Medicare Advantage Implementation Updates/OE Planning." The Committee argues that the pending litigation exemption is appropriate in this case, because after the meeting, RISE Delaware filed suit against the Committee and other parties, seeking to stay the implementation of the Medicare Advantage Plan. The Committee's counsel states that the Court has stayed implementation of the plan, pending a final determination of the merits of the case. The Committee's counsel asserts that it is "without question that the recording of the [Committee's] meeting on September 19, 2022, which included implementation of the Medicare Advantage Plan on the agenda, pertains to the pending litigation."[2] Accordingly, the Committee's counsel contends that the Committee properly invoked the pending litigation exemption. Additionally, the Committee's counsel points out that FOIA does not require this meeting to be recorded.

DISCUSSION

FOIA mandates that public records be "open to inspection and copying during regular business hours" and that "[r]easonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.[3] The term, "public record," is broadly defined to include "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced."[4] However, "records pertaining to pending or potential litigation which are not records of any court" are excluded from the definition of "public record."[5] The public body carries the burden of proof to justify its denial of access to records.[6] In certain circumstances, a sworn affidavit may be required to meet that burden.[7]

The meetings of public bodies are generally required to be open to the public.[8] With one limited exception in Section 10006A for elected public bodies, FOIA does not require a public body to record a meeting and maintain a recording of that meeting for public inspection. Rather, public bodies are required to maintain minutes of meetings by recording the members who attended and except for town assemblies, recording by individual, each vote taken and action agreed upon.[9] Those meetings minutes must be made available for public inspection and copying.[10] Minutes for executive sessions must also be maintained and made available for public inspection and copying, except they may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.[11]

When public bodies create and maintain recordings directly transcribing public meetings, Delaware's Court of Chancery has found that those verbatim recordings are akin to the meeting minutes.[12] When they exist, these recordings must also be made available for public inspection and copying, subject to the provisions of Section 10004(f) governing meeting minutes.[13]

In this case, the agenda indicates that the item, "Medicare Advantage Implementation Updates," was an open session item discussed at a public meeting. Although we agree that FOIA does not require the Committee to create and maintain a video recording of the September 19, 2022 meeting, once the Committee created and maintained this recording, it is subject to FOIA and must be made available for public inspection and copying in the same manner as the meeting minutes. Thus, we find that the Committee violated FOIA by refusing access to the video recording of this meeting. It is recommended that the Committee provide access to the video recording of this public meeting within the timeframe provided in Section 10003.

CONCLUSION

For the foregoing reasons, we determine that the Committee violated FOIA by not providing you access to the recording of its September 19, 2022 public meeting.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Adria B. Martinelli, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Petition.
[2] Response.
[3] 29 Del. C. § 10003(a).
[4] 29 Del. C. § 10002(o).
[5] 29 Del. C. § 10002(o)(9).
[6] 29 Del. C. § 10005(c).
[7] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[8] Limited exceptions are noted in the FOIA statute. 29 Del. C. § 10004.
[9] 29 Del. C. § 10004(f).
[10] Id.
[11] Id.
[12] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *13 (Del. Ch. May 19, 1994) (finding that tape recordings of executive sessions are "simply another form of verbatim recording of the executive sessions" and "a verbatim recording, like written minutes, would be exempt from disclosure only if the recorded discussions pertain to a lawful purpose for holding the executive session").
[13] Id. (holding that a board must release tape recordings of certain executive sessions, only redacting those portions that specifically concern the lawful purpose of the executive sessions).