Can a Delaware board legally hold a virtual meeting where the public can only listen by phone?

Official title

23-IB08 02/09/2023 FOIA Opinion Letter to Randall Chase re: FOIA Complaint Concerning the State of Delaware Board of Elections

Plain-English summary

The Delaware Board of Elections held a fully virtual public meeting on January 9, 2023. AP reporter Randall Chase filed a FOIA petition arguing that the meeting violated FOIA because Board members had visual and audio access while the public was limited to audio. He contended that 29 Del. C. § 10006A(c)(4) requires the public body to provide the same access mode to members and the public.

The AG ruled there was no violation. The Board, through its Community Relations Officer's affidavit, established that the meeting was conducted by phone for members and the public. The sole exception was the State Election Commissioner, who activated his Microsoft Teams camera; the other members could not view each other or share screens. Section 10006A requires that the public be able to "monitor" the meeting through "an electronic means of communication." On these facts, the AG found that the public's audio access satisfied that requirement. The Board had argued that a meeting with video for members and audio for the public would also comply, but the AG did not decide that hypothetical.

The petition also alleged the Board failed to provide an anchor location. The AG addressed that briefly in a footnote: at the time of the meeting, the Governor's Public Health Emergency declaration extended the FOIA modification that suspended the anchor-location requirement for virtual meetings, so no violation occurred on that ground either.

What this means for you

If you are a Delaware public body holding virtual meetings

The opinion holds that a virtual meeting the public could monitor by audio (telephone) satisfied FOIA. Section 10006A(c)(6) requires only that the public be able, "through an electronic means of communication," to monitor the meeting and provide comment where comment is required or offered. The Board's sworn affidavit that the meeting was conducted by phone for members and public alike carried its burden.

If you are a citizen or journalist trying to follow a virtual meeting

The opinion holds that audio access satisfied the public-monitoring requirement for this phone meeting, where the other Board members also attended by audio. Section 10006A(c)(4) addresses what participating members and witnesses must be able to hear or see; the AG quoted that provision but did not decide whether the public may be limited to audio when members use video. The opinion also quotes the rule making a document used and accepted at a meeting available under Section 10003. The Board said the report under discussion had been posted online before the meeting.

If you are an attorney for a board considering a hybrid format

The Board argued that a meeting with video for members and audio for the public would comply with FOIA. The AG did not rule on that format. Its no-violation finding relied on the affidavit that members and the public participated by phone, apart from one member who activated his camera.

Common questions

What does "electronic means of communication" mean under FOIA?

29 Del. C. § 10002(e) cites the definition in 6 Del. C. § 12A-102: "technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities." The AG found that public access by telephone met the requirement for this meeting.

Did the AG decide whether members may use video while the public gets audio?

No. The Board argued that such a format would comply, citing Section 10006A(c)(4), which addresses participating members and witnesses. The AG's ruling concerned a meeting conducted by phone for members and the public, except that one member activated his camera. Section 10006A(c)(6) requires electronic means for the public to monitor the meeting and provide comment when required or offered.

What about documents shared during the meeting?

Section 10006A says a document used during the meeting by a member or witness and accepted by the presiding officer or chair must be made available under § 10003. The Board said the report under discussion had been posted online before the meeting.

Why didn't the anchor location issue matter?

At the time, Delaware was operating under a Governor's Public Health Emergency declaration that the AG had previously held qualifies as a "state of emergency" for purposes of Section 10006A, suspending the anchor location requirement for virtual meetings. See Del. Op. Att'y Gen. 22-IB25 and 22-IB10.

Background and statutory framework

29 Del. C. § 10004 generally requires public-body meetings to be open to the public. Section 10006A allows virtual meetings when statutory conditions are met. Section 10006A(c)(4) provides that all participating members and witnesses must be able simultaneously to hear, or hear and see, one another. Section 10006A(c)(6) provides that the public must be allowed, through an electronic means of communication, to monitor the meeting and to provide public comment if the body is required to or chooses to accept comment.

The public body bears the burden under 29 Del. C. § 10005(c), and Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1010-11 (Del. 2021), confirmed that a sworn affidavit may be required. The Community Relations Officer's affidavit established that members and the public attended by phone, apart from the Commissioner activating his camera.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(e) (definition of "electronic")
• 29 Del. C. § 10003 (records access)
• 29 Del. C. § 10004 (open meetings)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof)
• 29 Del. C. § 10006A (virtual meetings)
• 29 Del. C. § 10006A(c)(4) (members and witnesses)
• 29 Del. C. § 10006A(c)(6) (public monitoring)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 22-IB25, 2022 WL 3373425 (July 20, 2022)
• Del. Op. Att'y Gen. 22-IB10, 2022 WL 1231750 (Apr. 14, 2022)
• 6 Del. C. § 12A-102

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/02/09/23-ib08-02-09-2023-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-state-of-delaware-board-of-elections/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/02/Attorney-General-Opinion-No.-23-IB08.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. 23-IB08
February 9, 2023
VIA EMAIL
Randall Chase
[email protected]

RE:

FOIA Petition Regarding the State of Delaware Board of Elections

Dear Mr. Chase:

We write regarding your correspondence alleging that the State of Delaware Board of Elections 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 find that the Board did not violate FOIA by allowing the public to access the January 9, 2023 meeting through audio means only.

BACKGROUND

The Board consists of eleven members, including the State Election Commissioner, who serves as an ex officio member and only votes in the event of a tie.[1] The Board held a fully virtual public meeting on January 9, 2023. Following the meeting, you filed this Petition, alleging that the Board violated FOIA by allowing board members to have visual and audio access to the meeting but limiting the public to audio access.[2] You state that the public was unable to see the members or the documents or screens the members were sharing. You argue that Section 10006A(c)(4) requires the public body to provide the same means of accessing the meeting to the members and the public.

The Board, through its counsel, responded to the Petition ("Response"), attaching the affidavit of the Community Relations Officer, who also serves as the FOIA coordinator for the Delaware Department of Elections. The Community Relations Officer monitored the January 9, 2023 meeting, and she explains under oath that both the Board members and the public were invited to participate in the meeting by audio through Microsoft Teams; the Response included a copy of the meeting notice and agenda together with the email to the members stating "the meeting will be conducted exclusively by phone."[3] She attests that all members and the public attended the meeting by telephone; the sole exception was the Commissioner who selected the option for video access available to him as a State employee on his Microsoft Teams invitation. Thus, the Board members were not able to view each other or share screens or documents amongst themselves during the meeting. Even if the meeting was conducted with audio access for the public and videoconferencing for the Board, the Board argues that this would still comply with FOIA, as it is not prohibited from conducting a virtual meeting in this format. The Board contends that FOIA merely requires that the public be permitted to monitor the public meeting through an electronic means of communication, and both telephone and videoconferencing satisfy FOIA's definition of "electronic" access. The Board maintains that your reliance on Section 10006A(c)(4), requiring that members and witnesses be able to hear or see and hear the recognized member or witness, is misplaced. Section 10006A(c)(4) allows audio or videoconferencing access for members and witnesses, and the Board points out that the public is neither a witness nor a member. Moreover, the Board contends that FOIA does not guarantee the public's immediate access to records of the Board used or referenced at a virtual meeting; records are available by request under Section 10003, and in this case, the report under discussion was made available online prior to the meeting for the public's review.

DISCUSSION

The public body carries the burden of proving compliance with the FOIA statute.[4] Under certain circumstances, a sworn affidavit may be required to meet that burden.[5] FOIA mandates that the meetings of public bodies, with limited exceptions, be open to the public[6] and when certain requirements are satisfied, permits public bodies to hold a meeting virtually.[7] Among the requirements, Section 10006A states that the public body must permit the members and witnesses simultaneously to hear or hear and see the member or witness who has been recognized by the presiding officer.[8] The public is allowed, "through an electronic means of communication," to "monitor the meeting" and "provide public comment, if the public body is required to accept, or provides an opportunity for, public comment."[9] "Electronic" means are defined as "technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities."[10] "A document used during the meeting by a member or witness, and that is accepted by the presiding officer or chair," must be made available to the public under Section 10003.

The Board demonstrated, through the Community Relations Officer's affidavit, that the January 9, 2023 virtual meeting was conducted for Board members and the public by telephone only, even though one member activated his camera. As the Board provided sworn evidence that it met FOIA's requirement that the public was able to monitor the meeting via an electronic means of communication, we conclude that the Board did not violate FOIA by allowing the public to have audio access only in this meeting.

CONCLUSION

For the foregoing reasons, we determine that the Board did not violate FOIA by allowing the public to access the January 9, 2023 meeting through audio means only.

Very truly yours,
/s/ Alexander S. Mackler
__________
Alexander S. Mackler
Chief Deputy Attorney General

cc:

Frank N. Broujos, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

[1] Response, p. 2.
[2] The Petition also alleged that the Board violated FOIA by failing to provide an anchor location for the January 9, 2023 meeting. We determined that the Board did not violate FOIA, because at the time of this meeting, the Governor had extended the Declaration of a Public Health Emergency for the State of Delaware. See Del. Op. Att'y Gen. 22-IB25, 2022 WL 3373425, at 3 (July 20, 2022) ("[T]his 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."); Del. Op. Att'y Gen. 22-IB10, 2022 WL 1231750, at 2 (Apr. 14, 2022).
[3] Response, Ex. 4.
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1010-11 (Del. 2021).
[6] 29 Del. C. § 10004.
[7] 29 Del. C. § 10006A.
[8] 29 Del. C. § 10006A(c)(4) ("All participating members and witnesses can simultaneously do [one] of the following regarding each member or witness who is recognized by the presiding officer or chair: a.) hear the comments of each member or witness; b.) hear the comments of and view each member or witness.").
[9] 29 Del. C. § 10006A(c)(6).
[10] 29 Del. C. § 10002(e) (citing 6 Del. C. § 12A-102).