Does a city committee picking a buyer for surplus property have to keep minutes under Delaware's open meetings law?

Official title

23-IB34 12/13/2023 FOIA Opinion Letter to Dan Shortridge re: FOIA Complaint Concerning the City of Dover

Plain-English summary

The City of Dover wanted to sell its surplus "Old Post Office" property. The City Manager assembled a five-person review committee (the Mayor, City Manager, Assistant City Manager, Planning Director, and the Central Delaware Chamber of Commerce president) to evaluate proposals and recommend a buyer to City Council. The committee met once, on August 29, 2023, with no posted agenda and no minutes kept. The City defended that choice by claiming the committee's discussion was confidential under 29 Del. C. § 10002(o)(2).

The City eventually conceded that the committee was a public body and that the failure to keep an agenda and minutes was a FOIA violation, but argued the missing records should never have to be created or produced. The AG rejected that argument. Section 10004 requires public bodies to post an agenda and prepare minutes for their meetings, full stop. The AG concluded the committee violated FOIA and ordered it to reconstruct minutes for the August 29, 2023 meeting (without disclosing genuinely nonpublic information) within 15 business days, then make those minutes available to the requester.

What this means for you

If you are a Delaware municipal official forming an ad hoc committee

The opinion holds that this review committee was a public body subject to FOIA's open-meeting duties, and that under § 10004 a public body must conspicuously post an agenda and prepare minutes for its meetings and make those minutes available as a public record. That applied even though the committee met just once and the topic (selecting a buyer for surplus property) was treated as sensitive. The committee violated FOIA by failing to post an agenda and keep minutes.

If you are a Delaware journalist tracking selection or recommendation committees

The opinion treats a committee formed to review proposals and recommend a buyer to City Council as a public body reachable through FOIA's open-meeting requirements. The absence of an agenda and minutes for its meeting was itself the FOIA violation found here.

If you are a Delaware citizen who believes a public body skipped open-meeting rules

The opinion shows the AG can, on a petition under § 10005, find an open-meetings violation and recommend that the body reconstruct minutes after the fact. Here the AG set a deadline: prepare minutes for the August 29, 2023 meeting (without disclosing nonpublic information) and make them available within 15 business days.

If you advise a Delaware public body that missed the agenda/minutes requirement

The opinion describes how Dover acknowledged in its second response that "a FOIA violation did in fact occur when the small committee failed to keep an agenda and or minutes," and enclosed a sworn affidavit from the City Manager. The AG accepted the concession, found the violation, and framed the remedy around reconstructing the missing minutes rather than further sanction.

Common questions

Was the committee really a "public body" subject to FOIA?

The opinion treats it as one. The City Manager formed the committee, consisting of the Mayor, City Manager, Assistant City Manager, Planning Director, and the Central Delaware Chamber of Commerce president, to review proposals and recommend a buyer to City Council. The City conceded the committee was subject to FOIA; the opinion did not separately analyze the public-body definition.

Why did the AG order the committee to create minutes after the fact?

So the open-meeting requirement is not defeated by simply not keeping records. The opinion holds that if the City had followed FOIA, "the City would have had records to produce." It cites prior opinions 17-IB54 and 05-IB06, in which the Office likewise recommended that a body create minutes for past meetings as remediation.

Could the City declare the meeting confidential and skip minutes?

No. The opinion holds § 10004 requires an agenda and minutes regardless, and the remedy was to prepare the minutes "without disclosing nonpublic information." A public body redacts genuinely nonpublic content rather than keeping no record at all.

What about Section 10002(o)(2), which the City cited?

The City argued the agenda and minutes were exempt under § 10002(o)(2). The opinion holds that even if portions of records are exempt, the body still had to post an agenda and maintain minutes under § 10004; had it done so, it would have had records to produce, redacting nonpublic information as needed. The record-content exemption did not excuse the missing agenda and minutes.

Background and statutory framework

The City of Dover formed a five-member committee to evaluate proposals to buy the Old Post Office and recommend a buyer to City Council. The committee met on August 29, 2023 with no agenda and no minutes. The requester filed two petitions: first that the City improperly denied his October 16, 2023 records request for "the agendas and minutes of all the meetings of this committee" by citing § 10002(o)(2); second that the absence of records itself proved an open-meetings violation.

Under § 10005(c), the public body has the burden to justify a denial. Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), a sworn affidavit may sometimes be needed. Section 10004 imposes the affirmative duties to post agendas, prepare minutes, and make those minutes available. Section 10004(f) requires that minutes "include a record of those members present and a record, by individual members ... of each vote taken and action agreed upon."

The City conceded in its second response that "a FOIA violation did in fact occur when the small committee failed to keep an agenda and or minutes." The AG accepted that concession, found the violation, and ordered remediation: prepare minutes for the August 29, 2023 meeting (without disclosing genuinely nonpublic information) and make them available to the requester within 15 business days.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10002(o)(2) (cited by City)
• 29 Del. C. § 10003 (public access to records)
• 29 Del. C. § 10004 (open meeting requirements)
• 29 Del. C. § 10004(f) (minutes content)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof on public body)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Op. Att'y Gen. 17-IB54, 2017 WL 52568140 (Oct. 10, 2017)
• Del. Op. Att'y Gen. 05-IB06, 2005 WL 840259 (Mar. 9, 2005)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/12/13/23-ib34-12-13-2023-foia-opinion-letter-to-dan-shortridge-re-foia-complaint-concerning-the-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/12/Attorney-General-Opinion-No.-23-IB34.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-IB34
December 13, 2023

VIA EMAIL
Dan Shortridge
[email protected]

RE:

FOIA Petition Regarding the City of Dover

Dear Mr. Shortridge:
We write in response to your correspondence alleging that the City of Dover violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your correspondence as two Petitions for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we issue this combined Opinion to address both Petitions and determine that the City's review committee violated FOIA by failing to prepare an agenda and maintain minutes for its August 29, 2023 meeting.

BACKGROUND

The City of Dover wished to sell surplus property known as the "Old Post Office." To select a purchaser, the City Manager formed a committee, consisting of the Mayor, City Manager, Assistant City Manager, Planning Director, and Central Delaware Chamber of Commerce president, to review proposals and make a recommendation to City Council. This review committee met on August 29, 2023 to evaluate the submitted proposals. On October 16, 2023, you submitted a FOIA request seeking the agendas and minutes of all the meetings of this committee. A few weeks later, the City denied this request, stating that the requested agenda and minutes are exempt from FOIA under 29 Del. C. § 10002(o)(2).

The First Petition followed, alleging that the City's response is improper. You argue that the agenda and minutes could not be fully exempted from disclosure, and if only portions of a document are exempt under Section 10002(o)(2), it is to be redacted and the remainder of the record released. You also contend that agendas and minutes are intended for public disclosure by their definitions under FOIA. Finally, you assert that even if the committee had initially withheld those minutes under the executive session provisions of the statute, those minutes have lost any confidentiality, as the committee delivered its recommendation to the City Council and the committee's actions were publicly shared through a press release. In response to this First Petition, the City's counsel provided a response on the City's behalf ("First Response"), noting that it sent some agendas and minutes of the July to October 2023 meetings of the City Council and its Council Committee of the Whole. The City also enclosed an affidavit from the City Manager. The City Manager attests that the committee met once on August 29, 2023, but because of the confidential nature of the topic discussed, no agenda or minutes were kept for the meeting.

Following receipt of this First Response, you filed a Second Petition, alleging that the City also committed a violation of the open meeting requirements of FOIA, as this committee was a public body and was required to prepare an agenda and minutes for its August 29, 2023 meeting. In its response to this Second Petition, the City replied through its counsel ("Second Response"), acknowledging that "a FOIA violation did in fact occur when the small committee failed to keep an agenda and or minutes."[1] However, the City again argues that the agenda and minutes are not public records pursuant to Section 10002(o)(2), and it did not have an obligation to provide copies of those records in response to your FOIA request.

DISCUSSION

The public body has the burden of proof to justify its denial of access to records and to otherwise comply with the FOIA statute.[2] In certain circumstances, a sworn affidavit may be required to meet that burden.[3] Section 10004 requires a public body to conspicuously post an agenda and to prepare minutes for its meetings and make those minutes available for public inspection and copying as a public record.[4] Meeting minutes are required to "include a record of those members present and a record, by individual members . . . of each vote taken and action agreed upon."[5] In this case, the City acknowledged that the committee held a meeting on August 29, 2023, and the committee committed a FOIA violation by failing to post an agenda and maintain minutes for the meeting. If the City had followed FOIA's requirements, the City would have had records to produce in response to your request. Thus, we affirm that the City violated FOIA by failing to prepare an agenda and minutes as required. To remediate this violation, we recommend that the City's committee prepare minutes for its August 29, 2023 meeting in accordance with the FOIA statute, without disclosing nonpublic information and make these minutes available to you no later than fifteen business days from the date of this Opinion.[6]

CONCLUSION

For the reasons set forth above, we conclude that the City's review committee violated FOIA by failing to prepare an agenda and maintain minutes as required for its August 29, 2023 meeting.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Nicholas H. Rodriguez, City Solicitor

[1] Second Response.
[2] 29 Del. C. § 10005(c).
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[4] 29 Del. C. § 10004.
[5] 29 Del. C. § 10004(f).
[6] Del. Op. Att'y Gen. 17-IB54, 2017 WL 52568140, at 4 (Oct. 10, 2017) ("In order to remediate any FOIA violations, we recommend that the Commission make minutes of all prior meetings available for inspection and copying pursuant to 29 Del. C. § 10003. To the extent no such minutes exist, we recommend that the Commission create such minutes."); Del. Op. Att'y Gen. 05-IB06, 2005 WL 840259, at 5 (Mar. 9, 2005) (advising the Board of Adjustment to prepare minutes for two meetings as remediation when the Board failed to keep these minutes as required).