DE 24-IB05 2024-02-02

Does a small Delaware town's museum review committee have to follow open-meetings rules?

Short answer: Yes. The AG ruled the Town of Leipsic's Museum Review Committee, comprising the Mayor, Acting Council Secretary, and a Town resident, was a public body that violated FOIA when it met on November 6, 2023 without notice or minutes.

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 AG opinions are persuasive authority but not binding precedent.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

24-IB05 02/02/2024 FOIA Opinion Letter to Brian Geller re: FOIA Complaint Concerning the Town of Leipsic

Plain-English summary

The Town of Leipsic's Council appointed a three-person Museum Review Committee made up of the Mayor, the Acting Council Secretary, and a Town resident. On November 6, 2023, the Committee held a meeting without posting public notice or inviting public attendance. The petitioner argued the Committee was a public body because it had been appointed by the Council, used or would use public funds, and reported to the Council. The Town conceded it had not realized the Committee was subject to FOIA and pledged future compliance, while noting that the November 6 meeting did not include any votes and that the Committee routinely reported to Council.

The AG accepted the Town's concession and found a violation of FOIA's open-meeting rules. The opinion ordered the Committee to prepare meeting minutes for the November 6, 2023 meeting "to the extent practicable" and make them available for public inspection, and to re-discuss any items from that meeting at a future Committee meeting that complies with FOIA.

What this means for you

If you are a Delaware municipality with a small advisory committee

Even a three-person committee with a Town resident on it can be a "public body" under FOIA if a council appointed it and it reports back to the council. The takeaway:

Treat any council-appointed committee as a public body unless you have a specific opinion saying otherwise.
Post agendas, prepare minutes, and announce meetings, even when no votes are expected.
The "we don't take votes" excuse is irrelevant. Discussion of public business by a public body is itself a meeting, and minutes are required.
If you have already missed the requirement, follow the path the AG laid out here: reconstruct minutes to the extent practicable, then re-discuss the items at a properly noticed follow-up meeting.

If you are a Delaware citizen who suspects a town committee is meeting privately

You have a clear path. File a § 10005 petition to the AG describing what you know about the committee (who appointed it, what it discusses, who attends). The AG will look at the two-prong public body test and is likely to find FOIA applies. The AG cannot fine the town or invalidate decisions, but can order the committee to reconstruct records and run future meetings publicly.

If you are an attorney advising a small Delaware town

Audit your town's committee landscape. Any of the following are likely public bodies: planning committees, audit committees, history/museum committees, fee or rate committees, capital project committees. The Town of Leipsic case shows that even a museum review committee created informally is captured by FOIA. The cure is procedural (notice, agenda, minutes) not substantive; the meeting can still be productive.

Common questions

What's the test for a "public body"?

The two-prong test from 29 Del. C. § 10002(k): (1) the entity must be a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision," which the statute reads broadly to include "committee, ad hoc committee, ... group, panel, council, or any other entity ... appointed by any body or public official of the State"; and (2) the entity must expend public funds or be "impliedly or specifically charged ... to advise or to make reports, investigations or recommendations." A council-appointed committee that reports back to the council clears both prongs.

Was a private resident's presence on the committee a problem?

No. A committee is still a public body when it includes private residents who were appointed by a public body. The open-meeting rules apply to the committee as a whole. The private members are not personally violating FOIA; the committee's failure to follow procedure is.

Why did the AG order minutes for a meeting that already happened?

Because the alternative would let public bodies dodge FOIA by simply not keeping records. The AG's office has consistently ordered after-the-fact minute reconstruction (citing 21-IB16 here). The minutes do not have to be perfect, but they have to capture what § 10004(f) requires (members present, votes taken, actions agreed upon) "to the extent practicable."

Why did the AG also order re-discussion of the items at a future meeting?

To restore the public's right to observe deliberation. Recreated minutes show what happened, but they do not let the public participate in the conversation. Re-discussing the items at a publicly noticed meeting cures both halves of the open-meeting requirement.

What if the November 6, 2023 meeting did not produce any decisions?

The AG was unmoved by that argument. FOIA captures meetings, not just decisions. A meeting is the gathering of a public body to discuss public business, even without a vote. The Committee's failure to post and minute the meeting violated FOIA regardless of what was decided.

Background and statutory framework

The Town of Leipsic Council had appointed a Museum Review Committee with three members: the Mayor, the Acting Council Secretary, and a Town resident. The Committee met on November 6, 2023 without posting notice or keeping minutes. The petitioner filed a § 10005 petition. The Town acknowledged it had not realized the Committee was subject to FOIA, pledged to follow FOIA going forward, and emphasized that no votes had been taken at the meeting and that the Committee routinely reported to Council.

Under § 10005(c), the Town carries the burden of justifying its compliance. The two-prong public body test in § 10002(k) was satisfied because the Council appointed the Committee and the Committee makes reports to Council. The Town did not dispute the underlying facts, so the AG accepted the Town's effective concession and found a violation, citing 72 Del. Laws ch. 466 (2000) for the FOIA framework.

For remediation, the AG ordered: (1) preparation of minutes for the November 6, 2023 meeting to the extent practicable, made available under § 10004(f) and § 10004; (2) re-discussion of items addressed during that meeting at a future Committee meeting in full compliance with FOIA. This pattern follows AG Opinion 21-IB16 (2021) and is the standard remedy when a public body has missed open-meeting requirements.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(k) (definition of public body)
29 Del. C. § 10004 (open meeting requirements)
29 Del. C. § 10004(f) (minutes content requirement)
29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
72 Del. Laws ch. 466 (2000)
Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 (Jun. 1, 2018)
Del. Op. Att'y Gen. 21-IB16, 2021 WL 3160274 (July 6, 2021)

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. 24-IB05
February 2, 2024

VIA EMAIL
Brian Geller
[email protected]

RE:

FOIA Petition Regarding the Town of Leipsic

Dear Mr. Geller:
We write in response to your correspondence alleging that the Town of Leipsic violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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. As discussed more fully herein, we find that the Town's Museum Review Committee violated the FOIA statute and recommend the below-referenced steps to remediate this violation.

BACKGROUND

In the Petition, you allege that the Town of Leipsic's Museum Review Committee is comprised of the Mayor, Acting Council Secretary, and a Town resident, and on November 6, 2023, this Committee held a meeting, without posting a notice or inviting the public to attend. You argue that this Committee is a public body, as it was appointed by the Town Council and the museum will use public resources and funds. You contend that, as a public body, the Committee should have followed the open meeting laws.

On January 5, 2024, the Town's counsel replied on its behalf to the Petition ("Response"). The Town stated it was unaware that the Committee was subject to FOIA and assured that all future Committee meetings would be conducted in conformance with FOIA's requirements. The Town also noted that no votes were taken on any matters at the meeting in question here and that the Museum Review Committee makes reports to the Town Council routinely.

DISCUSSION

The Town carries the burden of proof to demonstrate its compliance with FOIA.[1] For FOIA's open meeting requirements to apply, the entity must be a "public body," as defined by the statute.[2] A two-part analysis is employed.[3] The first inquiry is whether the entity is a "regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State," which includes a ". . . committee, . . . group, panel, council, or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity."[4] If the first part is met, we then must determine whether the entity is supported in whole or in part by any public funds, expends or disburses any public funds, or "is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations."[5]

In this case, the Town acknowledges that it should have conducted its November 6, 2023 meeting in accordance with FOIA's open meeting requirements and does not dispute any of the provided facts demonstrating that the Committee was established by the Town Council and makes reports to the Town Council.[6] Accordingly, we accept the Town's position and find a violation occurred.[7] We recommend that the Town's Museum Review Committee prepare meeting minutes, to the extent practicable, for the November 6, 2023 meeting and make them available for public inspection and copying in accordance with 29 Del. C. § 10004.[8] In addition, the items addressed during this meeting should be discussed in a future Museum Review Committee meeting that is conducted in full compliance with FOIA's open meeting requirements.

CONCLUSION

Based on the foregoing, we conclude that the Town's Museum Review Committee violated FOIA's open meeting requirements and recommend that the Committee prepare meeting minutes for the November 6, 2023 meeting and make them available for public inspection and copying pursuant to Section 10004. In addition, the items addressed during the November 6, 2023 meeting should be discussed in a future Museum Review Committee meeting that is conducted in full compliance with FOIA's open meeting requirements.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

F. Michael Parkowski, Attorney for the Town of Leipsic

[1] 29 Del. C. § 10005(c).
[2] 29 Del. C. § 10002(k).
[3] Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706, at 1 (Jun. 1, 2018).
[4] 29 Del. C. § 10002(k).
[5] Id.
[6] Response.
[7] 72 Del. Laws ch. 466 (2000).
[8] 29 Del. C. § 10004(f); see also Del. Op. Att'y Gen. 21-IB16, 2021 WL 3160274, at 2 (July 6, 2021).