DE 24-IB21 2024-05-28

Is a voluntary association of Delaware coastal towns subject to open-meetings law?

Short answer: Yes. The AG ruled that the Association of Coastal Towns, formed by seven Delaware mayors and funded by member dues, is a public body. It violated FOIA by holding meetings without notice or minutes, by letting a two-mayor US Wind committee meet privately, and by lacking a FOIA coordinator and portal.

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 AG opinions are persuasive authority but not binding precedent.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-IB21 05/28/2024 FOIA Opinion Letter to Edward Bintz re: FOIA Complaint Concerning the Association of Coastal Towns

Plain-English summary

Seven Delaware mayors, representing Fenwick Island, South Bethany, Bethany Beach, Dewey Beach, Henlopen Acres, Rehoboth Beach, and Lewes, signed a charter creating the Association of Coastal Towns (ACT) "to promote, conduct and protect the general welfare and common interests of its members." Members pay annual dues; ACT spends those dues on insurance, consultants, transcription, and other expenses. ACT had been negotiating with US Wind, a developer of an offshore wind project, including hiring a consultant to evaluate proposed Public Service Commission awards.

The petitioner argued ACT was a public body that had been ignoring FOIA. ACT's counsel said ACT was "a voluntary organization" not created by any legislature and therefore not a public body. The AG sided with the petitioner. The seven member municipalities were each established by General Assembly charter, so ACT, formed by bodies established by the General Assembly, was itself a public body under prong one of § 10002(k). Even if that were not enough, the mayors were public officials and the association they appointed clears the alternative prong-one route. Prong two (public funds) was satisfied because dues are public money and ACT both collects and disburses them.

The AG then found four FOIA violations: ACT held December 2023 meetings without notice or minutes; ACT's two-mayor US Wind Committee held a December 1, 2023 meeting with the US Wind representative; and ACT had no FOIA coordinator, no FOIA request policy, and no online FOIA portal. The AG recommended ACT and the US Wind Committee re-discuss any items considered at noncompliant meetings, ratify any votes taken at a future compliant meeting, post or reconstruct minutes, and stand up the missing FOIA infrastructure. The opinion also flagged a sharp deadline: the petitioner had only until June 1, 2024 to file a court challenge to the December 1, 2023 meeting under the six-month statute of limitations in § 10005(a).

What this means for you

If you are a Delaware municipality that has joined an intermunicipal organization

The takeaway is direct. Joining a regional coalition does not let your town shed FOIA. If member dues fund the coalition or the coalition advises municipal decisions, the coalition itself is likely a public body. Two practical consequences:

The coalition needs a FOIA coordinator, a published policy, and an online portal.
Coalition meetings need notice and minutes.
Sub-committees of the coalition (here, a two-mayor "US Wind Committee") inherit the same obligations.
"We're voluntary" does not insulate the entity. The AG specifically rejected ACT's voluntariness defense.

If you are a citizen or environmental advocate tracking the offshore wind buildout in Delaware

This opinion gives you concrete tools. ACT must now post agendas and minutes for its meetings, including any meetings that touch on US Wind, Orsted, or future Central Atlantic lease areas. It must also accept and respond to FOIA requests through a designated coordinator and online portal. If those obligations are not met going forward, file another § 10005 petition.

If you are an attorney for a Delaware regional or intermunicipal body

Audit your client's FOIA infrastructure. The AG laid out a clear remediation pattern in this case: appoint a FOIA coordinator, adopt a written policy, build (or acquire) an online portal, post notices and agendas at the principal office, and reconstruct minutes for missed meetings. Watch for the six-month limitations period: the AG noted that the December 1, 2023 meeting claim would be time-barred after June 1, 2024, and dismissed everything older than six months at the outset.

If you are a Delaware mayor on a multi-mayor working group

Even an informal two-person committee meeting with a private contractor or developer can be a public body subject to open-meetings law. The safer assumption is that any group acting collectively in your municipal capacity is a public body, and you should treat it as one (notice, agenda, minutes, public attendance) unless an attorney has told you otherwise based on a specific opinion.

Common questions

How can a "voluntary" association be a "public body"?

Because the test under § 10002(k) does not turn on whether participation is mandatory; it turns on who appointed the entity and how it is funded. ACT's members were appointed by mayors of municipalities chartered by the General Assembly. That alone clears prong one. ACT also collects dues from those public-body member municipalities and spends them, which clears prong two.

Are public funds really "public" once the municipality pays them as dues?

Yes. Section 10002(n) defines public funds as "those funds derived from the State or any political subdivision of the State." Once the City of Lewes pays its share of ACT dues out of public revenues, those dollars remain public funds in ACT's hands.

Do small subcommittees of a public body need to follow open-meetings rules?

When the parent body formally appoints them, yes. The AG treated the two-mayor US Wind Committee as a public body of its own, subject to FOIA, and found a violation when it met privately on December 1, 2023.

What is the six-month limitations period?

Section 10005(a) lets a citizen "challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action." Outside that window, court review is foreclosed. The AG dismissed any pre-October-26-2023 claims for that reason.

Is ACT required to post meeting notices online?

The opinion notes that municipalities are not obligated to post meeting notices online (citing 22-IB23). They must post conspicuously at the principal office or where meetings are regularly held under § 10004(e)(5). For practical accountability, however, online posting is the norm and the AG gave ACT an effective push toward standing up an online FOIA portal.

Why didn't ACT just argue that "no votes were taken" at the December meetings?

ACT did not present sworn evidence about what happened at the meetings. The AG's burden analysis is that the public body has to prove compliance, not merely assert it. With no sworn record of what was discussed, the FOIA finding flowed inevitably from the absence of public notice and minutes.

Background and statutory framework

ACT's charter, signed by the seven Delaware coastal municipality mayors, organized the entity as an unincorporated association "to act for and on behalf of its members." Each member designates a delegate (normally the Mayor), each member casts one vote, and majority vote decides. Annual dues fund consultant fees, insurance, transcription, and administrative expenses. By December 2023, ACT had hired a consultant for "technical services related to the proposed Maryland Public Service Commission awards for U.S. Wind and Orsted and future offshore Central Atlantic lease areas off the coasts of Delaware and Maryland."

The petition under § 10005 raised five claims: (1) ACT regularly held meetings without notice or public participation; (2) specific December 5, 2023 and December 20, 2023 meetings happened without notice; (3) ACT failed to maintain minutes for those December meetings; (4) ACT's two-mayor US Wind Committee met December 1, 2023 without notice; and (5) ACT lacked a FOIA online portal, a FOIA request policy, and a FOIA coordinator under § 10003.

The AG applied the two-part public-body test from § 10002(k). Prong one: ACT was established by bodies established by the General Assembly (each municipal charter is a General Assembly act), or alternatively by public officials (the mayors). Prong two: ACT both collects and disburses public funds within § 10002(n). The AG cited 19-IB54 (work group selected by County Administrator), 18-IB21 (Seaford City Manager as public official), and 97-IB13 (Mayor-of-Lewes-appointed committee) for the appointed-by-public-officials path.

For the meeting requirements, § 10004 requires advance notice, agendas, public participation, and minutes. Section 10004(e)(5) requires conspicuous posting at the principal office or regular meeting location, but does not require online posting (citing 22-IB23). Section 10004(f) requires minutes recording members present, votes taken, and actions agreed upon. Section 10003 requires a designated FOIA coordinator, a request policy, and an online portal.

For remediation, the AG recommended ACT and the US Wind Committee re-discuss items from noncompliant meetings and ratify any votes at a future compliant meeting, reconstruct minutes from any preserved materials, and put the missing FOIA infrastructure in place. Section 10005(a) limits the time for a court challenge: 60 days from learning of the action, but in no event more than 6 months after the action.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10002(j) (definition of meeting)
29 Del. C. § 10002(k) (definition of public body)
29 Del. C. § 10002(m) (definition of public business)
29 Del. C. § 10002(n) (definition of public funds)
29 Del. C. § 10003 (FOIA coordinator, policy, portal)
29 Del. C. § 10004 (open meeting requirements)
29 Del. C. § 10004(a) (public comment)
29 Del. C. § 10004(e)(5) (notice posting)
29 Del. C. § 10004(f) (minutes content)
29 Del. C. § 10005 / § 10005(a) / § 10005(c) (petition, statute of limitations, burden of proof)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
Del. Op. Att'y Gen. 02-IB19 (six-factor test)
Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706 (Jun. 1, 2018)
Del. Op. Att'y Gen. 19-IB09, 2019 WL 1511364 (Feb. 22, 2019)
Del. Op. Att'y Gen. 19-IB54, 2019 WL 5485989 (Sept. 26, 2019)
Del. Op. Att'y Gen. 18-IB21, 2018 WL 2266972 (Apr. 27, 2018)
Del. Op. Att'y Gen. 97-IB13, 1997 WL 606460 (Jun. 2, 1997)
Del. Op. Att'y Gen. 22-IB23, 2022 WL 2759908 (July 2, 2022)
Del. Op. Att'y Gen. 15-IB06, 2015 WL 5014135 (Aug. 19, 2015)

Source

Original opinion text

PRINT VERSION: Attorney General Opinion No. 24-IB21

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 24-IB21

May 28, 2024

VIA EMAIL

Edward E. Bintz

[email protected]

RE: FOIA Petition Regarding Association of Coastal Towns

Dear Mr. Bintz:

We write in response to your correspondence alleging that the Association of Coastal Towns ("ACT") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 determine that ACT is a public body that is required to meet FOIA's requirements.

BACKGROUND

The Petition alleges that the Association of Coastal Towns is a public body and has failed to meet FOIA's open meeting requirements, denying citizens the opportunity to observe or participate in matters related to US Wind's offshore wind project. [1] The Petition cites the six-factor test outlined in Attorney General Opinion No. 02-IB19, pointing out that ACT was created by the member municipalities, is entirely controlled by the member municipalities, is supported by government funds, performs functions traditionally or commonly associated with the municipalities, and is wholly comprised of government officials. Based on information gathered through FOIA requests, you allege that ACT serves as an "arm" of its member municipalities, taking a major, and sometimes potentially exclusive, role on matters of significant concern to the municipalities. You argue that ACT has represented its member municipalities' interest with respect to the US Wind project, including sending at least one letter to the Governor and negotiating with US Wind. You note that ACT banded together to advocate for other shared issues, such as beach replenishment. You allege that ACT's two-member US Wind Committee is also a public body subject to FOIA. The Petition asserts four primary claims, summarized as follows:

ACT holds regularly scheduled, non-public meetings without providing appropriate public notice and public participation as required by Section 10004.

ACT held meetings on December 5, 2023 and December 20, 2023 without providing appropriate public notice and public participation required by Section 10004.

ACT did not maintain meeting minutes for the December 5, 2023 and December 20, 2023 meetings as required by Section 10004(f).

ACT appointed a two-member US Wind Committee, which met without appropriate public notice or public participation required by Section 10004.

ACT failed to maintain an online portal for receiving FOIA requests, implement a FOIA request policy, and designate a FOIA coordinator in accordance with Section 10003. [2]

On May 10, 2024, ACT, through its legal counsel, replied to the Petition ("Response"). ACT asserts that it is not a public body, arguing instead it is "a voluntary organization consisting of members from various coastal towns in Delaware," which was not created by the General Assembly or the legislative bodies of any of the member municipalities. [3] As such, ACT contends that it does not meet the first prong of the two-part statutory test cited in recent Attorney General Opinion precedent and therefore cannot be a considered a public body. If Attorney General Opinion No. 02-IB19 did apply, ACT asserts that the six factors in that decision demonstrate that ACT is not a public body, contrary to the Petition's assertion.

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA. [4] In certain circumstances, a sworn affidavit may be required to meet that burden. [5] FOIA mandates that public bodies meet specific requirements when holding public meetings, including advance notice, posting notices and agendas, an opportunity for public comment, and maintaining meeting minutes. [6] These open meeting requirements only apply to a "public body" as defined by the FOIA statute. Public bodies are also required to make their public records available in accordance with the statute's requirements.

ACT's Status as a "Public Body" Under Section 10002(k)

To determine if an entity is a public body under FOIA, a two-part analysis is required. [7] 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, . . . advisory board and committee . . . association, 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." [8] 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." [9]

Here, seven mayors signed a charter to establish ACT as an unincorporated association that may "act for and on behalf of its members to promote, conduct and protect the general welfare and common interests of its members." [10] The members are limited to the seven Delaware coastal municipalities: Fenwick Island, South Bethany, Bethany Beach, Dewey Beach, Henlopen Acres, Rehoboth Beach, and Lewes. Each member "shall designate a principal delegate, normally the Mayor and/or others to attend meetings of the group." [11] Each member has a single vote, with a simple majority deciding any issues, and annual dues are required to be paid for costs, such as insurance, consultant fees, meeting transcription services, and other administrative expenses. All seven municipalities were established by charters enacted by the General Assembly, [12] and thus, the municipalities are bodies established by the General Assembly. Therefore, ACT, established by bodies established by the General Assembly, is itself a public body. Alternatively, even if we assume that the seven mayors formed this entity without any needed authorization from their legislatures, the conclusion remains the same, as ACT's members were collectively appointed by public officials of the State. [13] In either case, the first prong is satisfied.

As ACT collects annual dues from its members and disburses those public funds for expenses, including consultant services, the second prong is also met. Public funds are "those funds derived from the State or any political subdivision of the State." [14] Financial statements attached to the Petition reflect that ACT collects annual dues to support its functions and disburses these funds for expenses. [15] The dues of the members, except Fenwick Island, were committed to hire a consultant for "technical services related to the proposed Maryland Public Service Commission awards for U.S. Wind and Orsted and future offshore Central Atlantic lease areas off the coasts of Delaware and Maryland." [16] As the public funds of the municipalities were collected to support ACT and disbursed for its expenses, the second prong is met. We determine that ACT is a public body pursuant to the statutory definition in 29 Del. C. § 10002(k).

Alleged Violations of FOIA

FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public and that meeting notices and agendas be timely posted in advance of the meeting in accordance with the statute. [17] The notice and agenda must be conspicuously posted at the principal office of the public body holding the meeting, or if no such office exists, at the place where meetings of the public body are regularly held. [18] Municipalities are not obliged to post meeting notices, agendas, or minutes online. [19] A meeting is "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." [20] Public business includes "any matter over which the public body has supervision, control, jurisdiction or advisory power." [21] The public body must permit a time for public comment in accordance with 29 Del. C. § 10004(a). Additionally, a public body is to designate a FOIA coordinator to serve as a point of contact for records requests made to the public body, implement a policy for addressing requests, and develop a web portal for receiving FOIA requests through the internet. [22]

In this case, you assert five claims against ACT. The first three claims assert that ACT failed to meet the public notice requirements and allow public participation for ACT's meetings on December 5, 2023, December 7, 2023, and December 20, 2023. In addition, you allege that ACT did not maintain meeting minutes for the December 5, 2023 and December 20, 2023 meetings. ACT has not provided sworn statements or other appropriate evidence to demonstrate that it met these open meeting requirements for these meetings. [23] As such, we find violations occurred with respect to the first three claims.

The fourth claim alleges that ACT established a two-person committee, known as the US Wind Committee, and that committee met without proper notice or public participation on December 1, 2023. [24] The Petition included a mayor's December 1, 2023 email stating that two mayors of the alleged committee met with US Wind's representative earlier that day about a counterproposal related to the "US Wind/ACT agreement." [25] In its Response, ACT argues that any committee also is not a public body because it was not created by an act of the General Assembly or a legislative act of the member municipalities, but does not include the factual basis to dispute this claim. As ACT failed to meet its burden to show that this meeting between two mayors and the US Wind representative was properly held under FOIA, we find that a violation of FOIA occurred at the December 1, 2023 meeting.

Finally, the Petition's fifth claim is that ACT failed to follow Section 10003's requirements to have an online portal for receiving FOIA requests, to implement a FOIA request policy, and to designate a FOIA coordinator. ACT did not present evidence of compliance with these requirements. Thus, we find that ACT violated FOIA in these respects.

Recommendations

Having found that ACT violated FOIA, we consider whether any remediation is appropriate to recommend. Section 10005(a) states that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate a public body's action, or to impose other relief, is reserved for the courts. [26] The Delaware Court of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." [27] In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." [28]

We recommend that ACT and its US Wind Committee discuss those items considered at noncompliant meetings, and ratify any votes taken, at a future meeting held in compliance with FOIA's open meeting requirements. If minutes exist or any meetings have been recorded or otherwise preserved, it is recommended that ACT make available those existing minutes or use the available meeting materials to create minutes compliant with Section 10004(f). [29] Additionally, it is recommended that ACT appoint a FOIA coordinator, implement a FOIA request policy in accordance with the FOIA statute, and create an online portal for accepting FOIA requests.

To the extent you wish to pursue remedies, you are encouraged to promptly review whether you wish to file suit under Section 10005. Section 10005(a) provides that "[a]ny citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action." For example, the claim relating to the December 1, 2023 meeting will be time-barred by the six-month limitation on June 1, 2024, or possibly sooner depending on when you learned of the violative action.

CONCLUSION

For the foregoing reasons, we conclude that ACT is a public body, and ACT violated FOIA by failing to conduct certain meetings in accordance with the open meeting requirements and by failing to comply with the above-referenced requirements of Section 10003.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

Patricia A. Davis

State Solicitor

cc: James E. Liguori, Attorney for the Association of Coastal Towns

[1] This Petition alleges that ACT violated FOIA over the past two years. Pursuant to the Rules of Procedure for FOIA Petitions and Determinations, the claims alleging violative conduct that occurred more than six months prior to the Petition were dismissed.
[2] Due to the time limitations on filing petitions, these claims are limited to alleged violative conduct occurring on or after October 26, 2023.
[3] Response, p. 1.
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[6] 29 Del. C. § 10004.
[7] Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706, at 1 (Jun. 1, 2018).
[8] 29 Del. C. § 10002(k).
[9] Id.
[10] Petition, Ex. J.
[11] Id.
[12] See "Delaware's Town Charters," https://charters.delaware.gov/ (last visited May 21, 2024).
[13] Del. Op. Att'y Gen. 19-IB54, 2019 WL 5485989 at 3 (Sept. 26, 2019); Del. Op. Att'y Gen. 18-IB21, 2018 WL 2266972, at 3 (Apr. 27, 2018); Del. Op. Att'y Gen. 97-IB13, 1997 WL 606460, at 2 (Jun. 2, 1997).
[14] 29 Del. C. § 10002(n).
[15] Petition, Ex. K.
[16] Id., Ex. D; see also id., Ex. G, K.
[17] 29 Del. C. § 10004.
[18] 29 Del. C. § 10004(e)(5).
[19] Id.; 29 Del. C. § 10004(f); see also Del. Op. Att'y Gen. 22-IB23, 2022 WL 2759908, at 3 (July 2, 2022).
[20] 29 Del. C. § 10002(j).
[21] 29 Del. C. § 10002(m).
[22] 29 Del. C. § 10003.
[23] Judicial Watch, Inc., 267 A.3d at 1010-11.
[24] Petition, p. 4, Ex. I.
[25] Id., Ex. I.
[26] 29 Del. C. § 10005.
[27] Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 7 (Del. Ch. Aug. 29, 1986).
[28] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 15 (Del. Ch. May 19, 1994).
[29] See, e.g., Del. Op. Att'y Gen. 19-IB09, 2019 WL 1511364, at 4 (Feb. 22, 2019).