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 actually conducted by phone for everyone, members and public alike. The sole exception was the State Election Commissioner, an ex officio member who unilaterally activated his Microsoft Teams video on his end as a State employee; the other members had no video among themselves and no shared screens. Even if the meeting had been members-by-video and public-by-audio, the AG noted, that arrangement would still comply with FOIA. Section 10006A requires only that the public can "monitor" the meeting through "electronic means of communication." Section 10002(e) defines "electronic" to include any technology with electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. A telephone qualifies. Section 10006A(c)(4)'s requirement that members and witnesses simultaneously hear or hear-and-see one another applies among members and witnesses, not between members and the public.

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

You can lawfully hold a meeting where the public listens by phone. The minimum is "electronic means" of monitoring under § 10006A(c)(6). Best practice when you have records or screens that members will reference: post them online before the meeting so the public can follow along. The Board did exactly that here, and the AG flagged it favorably.

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

You have a right to monitor via some electronic channel, but not necessarily a right to see the same screen members are seeing. If a member references a document during the meeting, you can request it under § 10003 in a separate FOIA request, or check whether the body has posted it online. If you cannot see what is being voted on at all, that is closer to a real FOIA problem; raise it in writing during or right after the meeting.

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

The members-on-video, public-on-audio configuration would have been allowed even if it had occurred. There is no legal requirement that the public mirror member access exactly. The friction point in this case was the optics, not the statute.

Common questions

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

29 Del. C. § 10002(e) imports the definition from 6 Del. C. § 12A-102: "technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities." That includes telephone, videoconferencing, livestream audio, livestream video, and any equivalent technology.

Does Section 10006A(c)(4) really only apply among members?

Yes. Its text covers "all participating members and witnesses" being able simultaneously to hear (or hear and see) one another. The public is neither a member nor a witness. The public's separate right comes from § 10006A(c)(6), which guarantees the ability to monitor and to provide public comment when the body's rules require comment.

What about documents shared during the meeting?

Section 10006A says any document used during the meeting by a member or witness, and accepted by the presiding officer or chair, must be made available under § 10003. That is FOIA-on-request availability, not necessarily real-time public visibility. Best practice is to post relevant documents in advance.

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 v. Univ. of Del., 267 A.3d 996, 1010-11 (Del. 2021), confirmed that a sworn affidavit may be required. The Community Relations Officer/FOIA coordinator's affidavit, paired with the meeting notice and the Board's email instructing members the meeting would be conducted by phone, was the evidence that resolved the case.

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) (member-to-member access)
• 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).