DE 23-IB34 2023-12-13

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

Short answer: Yes. The AG ruled the City of Dover's Old Post Office review committee violated FOIA by failing to post an agenda and keep minutes for its August 29, 2023 meeting, and ordered the committee to reconstruct minutes within 15 business days.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

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 takeaway: any committee a city council or city manager appoints to do real work is a public body. That means agenda posting, minutes, votes recorded, the whole open-meeting workflow, even if the committee meets just once, even if the topic is sensitive (surplus property sale, personnel selection, contract negotiations). If the committee genuinely needs confidentiality, it can go into executive session for an enumerated purpose under 29 Del. C. § 10004(b), but it still keeps minutes of the executive session. Skipping agendas and minutes entirely is not on the menu.

If you are a Delaware journalist tracking surplus-property deals or appointment processes

This opinion confirms that selection committees, review committees, and recommendation committees are reachable through FOIA's open-meeting requirements. If you find a city or county forming an ad hoc group that touches a public matter, ask for the agenda and minutes. If they say there were none, that itself is a FOIA violation worth a petition.

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

You can petition the AG under 29 Del. C. § 10005. The AG's authority includes recommending that a public body reconstruct minutes after the fact. As this opinion shows, the AG will sometimes set a hard deadline (here, 15 business days) for that reconstruction. The AG cannot invalidate a vote, but a court can.

If you are an attorney advising a Delaware public body that already missed the agenda/minutes requirement

Concede the violation cleanly. Look at how the City of Dover handled this case: it acknowledged the violation in its second response and provided a sworn affidavit. That doesn't avoid the violation, but it shapes the remedy. The AG's recommendation framework focuses on reconstructing what was missed, not on punishing the body further. Cooperate, draft minutes from any contemporaneous notes or memories you have, and identify what genuinely belongs in executive-session-style redactions.

Common questions

What's the threshold for being a "public body" required to follow open-meeting rules?

The standard two-part test from 29 Del. C. § 10002(k): (1) is the entity an "appointive or legislative body of the State, or of any political subdivision," including a "committee, ad hoc committee, ... group, panel, council, or any other entity ... appointed by any body or public official of the State or otherwise empowered by any state governmental entity"; and (2) does it expend public funds or is it "impliedly or specifically charged ... to advise or to make reports, investigations or recommendations." A committee appointed by a city manager or mayor to recommend who a city should sell property to clears both prongs easily.

Does the agenda have to use specific language?

Yes. The AG's office reads § 10002(a) and Delaware case law (notably the Lechliter decisions) to require that an agenda use plain, comprehensible language and that it alert someone with an "intense interest" in the topic. "Old Business" or "New Business" without more is not enough when an important specific aspect will be discussed.

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

Because the alternative would let public bodies escape the open-meeting rules by simply not keeping records. The AG's office has done this before (the opinion cites 17-IB54 and 05-IB06). Reconstructed minutes are imperfect, but they restore the public's chance to know who was at the meeting and what was decided.

Can the City just declare the meeting confidential and skip minutes?

No. Confidentiality has its own narrow statutory channels (executive session under § 10004(b)). Even an executive session keeps minutes, the minutes just may be withheld from public release. Refusing to keep any record is not how FOIA confidentiality works in Delaware.

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

That subsection exempts certain enumerated personnel files and similar documents from the definition of "public record." It does not exempt entire meetings of a public body from the meeting-notice and minutes requirements of § 10004. The City conflated record-content exemptions with meeting-procedure exemptions. The AG separated those: even a meeting whose contents are partly exempt from disclosure still needs an agenda and minutes; the public body just redacts as needed before release.

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

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).