Can a Delaware public body approve its meeting minutes via email instead of at an open meeting?
Official title
24-IB24 06/25/2024 FOIA Opinion Letter to Warren Rosenkranz re: FOIA Complaint Concerning the Village of Arden
Plain-English summary
The Village of Arden's Governance Task Force, formed by the Town Assembly to recommend changes to the Village's governing documents, met on December 7, 2023. Meeting minutes were not posted in a timely manner. On February 16, 2024, the Task Force chair circulated draft minutes by email to all members, who emailed back "several minor corrections." The minutes were then posted on the Village website on February 18, 2024. Warren Rosenkranz petitioned, alleging the Task Force had effectively held a meeting through email to approve the minutes without the advance notice and open-process requirements FOIA demands.
The AG ruled there was a FOIA violation. While not every email exchange among public-body members is a "meeting," serial communications that involve "an active exchange of information and opinions" rather than "the mere passive receipt of information," and that allow members to comment on each other's views and reach consensus, can constitute a constructive quorum. The Task Force email exchange about the December minutes met that test: members discussed and approved a matter that would otherwise have been on the next meeting's agenda. The AG recommended remediation: the Task Force should re-approve the December 7 minutes at a future meeting that complies with FOIA's open-meeting requirements.
What this means for you
If you serve on a Delaware public body
Approving minutes by email is a meeting. Adopting a motion by email is a meeting. So is reaching consensus on substantive committee business through serial email exchanges. The safer practice: handle anything that involves comment, deliberation, or action at a noticed open meeting. If you must touch a topic by email, limit it to passive receipt of factual information without member-to-member discussion.
If you watchdog a Delaware public body
Email chains are evidence. If you suspect a body is doing its real work over email, FOIA the email correspondence among members about specific topics. Judicial Watch v. Univ. of Del. requires affidavit-grade evidence in disputed cases, and a public body that has been deliberating by email will have a hard time explaining away the message thread.
If you advise a public body
Standard practice for minutes: present them at the next meeting, accept member corrections in real time, vote on approval in open session. The Court of Chancery and the AG have both said FOIA's open-meeting rule is broad enough to capture serial email approval; narrow it in your client's procedures to keep the body out of trouble.
Common questions
What's "active exchange of information and opinions"?
Member-to-member back-and-forth with comments, edits, opinions, or proposals. Members responding individually to a chair's email with substantive corrections falls inside the definition. By contrast, a chair sending a one-way notice ("here are the minutes; meeting next Tuesday") and members simply reading it without responding is closer to passive receipt.
Is approving minutes really a "matter that may come before the body for a vote"?
Yes. Minutes approval is itself a vote that would normally take place at the next meeting. By approving by email instead, the body bypassed the open-process requirements that would have applied to that vote.
What's a "constructive quorum"?
When a quorum's worth of members reach consensus on action through serial communications without convening together, the AG and Delaware courts treat that as the functional equivalent of a meeting, even though the members were never all in the same room (or video call) at the same time. The serial structure does not save the body from FOIA's open-meeting rules.
Is the recommended re-vote required?
No, it is recommended. Section 10005(a) says actions taken at a meeting in violation of FOIA "may be voidable by the Court of Chancery." The AG cannot void the action; only a court can. The AG's recommendation that the Task Force ratify the minutes at a future open meeting is a remedial step that fixes the procedural defect without invalidating the substance.
Background and statutory framework
29 Del. C. § 10004 sets the open-meeting rule. The AG has held in Del. Op. Att'y Gen. 17-IB09, 03-IB11, 06-ID20, and 06-IB16 that serial telephone, email, or other electronic communications among members of a public body can constitute a meeting. The standard from those opinions: the law is triggered when members "communicate about issues that may or will come before the [members] for a vote," and the communications involve "'an active exchange of information and opinions' as opposed to 'the mere passive receipt of information.'" The Washington Court of Appeals decision in Wood v. Battleground Sch. Dist., 27 P.3d 1208 (Wash. App. 2001), is the underlying authority cited in those AG opinions.
The remedies framework comes from 29 Del. C. § 10005(a), and Ianni v. Dep't of Elections of New Castle Cnty. and Chem. Indus. Council set the standard for invalidation: a serious sanction reserved for cases where substantial public rights have been affected and a specific remedy can be crafted. The AG declined to recommend invalidation here but recommended the Task Force re-approve the minutes at a properly noticed open meeting.
Citations
- 29 Del. C. §§ 10001-10008 (Delaware FOIA)
- 29 Del. C. § 10004 (open meetings)
- 29 Del. C. § 10005 (petition procedure)
- 29 Del. C. § 10005(a) (court invalidation)
- 29 Del. C. § 10005(c) (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. 17-IB09, 2017 WL 2345247 (Apr. 25, 2017)
- Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171 (May 19, 2003)
- Del. Op. Att'y Gen. 06-ID20, 2006 WL 2724980 (Sept. 11, 2006)
- Del. Op. Att'y Gen. 06-IB16, 2006 WL 2435111 (Aug. 7, 2006)
Source
- Landing page: https://attorneygeneral.delaware.gov/2024/06/25/24-ib24-06-25-2024-foia-opinion-letter-to-warren-rosenkranz-re-foia-complaint-concerning-the-village-of-arden/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/07/Attorney-General-Opinion-No.-24-IB24.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
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-IB24
June 25, 2024
VIA EMAIL
Warren Rosenkranz
[email protected]
RE:
FOIA Petition Regarding the Village of Arden
Dear Mr. Rosenkranz:
We write in response to your correspondence alleging that the Village of Arden 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 Village's Governance Task Force violated FOIA by holding a "meeting," as defined by FOIA, through email communications, which did not comply with the open meeting requirements.
BACKGROUND
The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village.[1] The Town Assembly formed a Governance Task Force for the purpose of reviewing and suggesting possible changes to Arden's governing documents.[2] On February 11, 2024, you submitted a FOIA request to the Village seeking the minutes for the December 7, 2023 Task Force meeting. The Village replied that the meeting minutes had not yet been approved, but they would be posted after approval. Later, the Village advised another citizen that the approval for the minutes was done remotely, and those minutes are now posted on the Village's website. This Petition followed, in which you allege that sometime between February 17, 2024 and February 22, 2024, the December minutes were approved remotely without the advance public notice required by FOIA.[3]
On June 4, 2024, legal counsel replied to the Petition on the Village's behalf ("Response"). The Village states that "[o]n or about February 16, 2024, the draft minutes were circulated electronically to the GTF members, who provided several minor corrections."[4] The minutes were then posted on February 18, 2024 to the Village's website.
DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA.[5] In certain circumstances, a sworn affidavit may be required to meet that burden.[6] FOIA mandates that public bodies meet specific requirements when holding public meetings, including allowing public access, posting advance notice and an agenda, permitting an opportunity for public comment, and maintaining meeting minutes.[7] In this case, the Village acknowledges that the Task Force circulated the draft minutes to its members via email, and after several minor corrections from the group, those minutes were posted to the website.
The relevant inquiry is whether this email exchange qualified as a "meeting" subject to FOIA's open meeting provisions. This Office has found that serial telephone, email or other electronic communications among members of a public body may amount to a meeting of the public body.[8] However, "'[i]t is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum.'"[9] For example, "a public body may achieve a quorum for purposes of FOIA though serial discussions which allow members of a public body 'to receive and comment on other members' opinions and thoughts, and reach consensus on action to take.'"[10] Importantly, this Office has stated that "[t]he [open meetings] law is triggered only where the members of a public body 'communicate about issues that may or will come before the [members] for a vote."[11] The communications must involve "'an active exchange of information and opinions' as opposed to 'the mere passive receipt of information.'"[12]
As this factual record indicates that the members of the Task Force, over email, discussed and approved the posting of the December 7, 2023 meeting minutes, a matter which would have been scheduled for discussion and action at the next meeting, we find that this exchange constitutes a "meeting" under FOIA. The Task Force violated FOIA by failing to follow the open meeting requirements for this meeting.
We next 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.[13] 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."[14] In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties."[15] In this case, we recommend that the Task Force discuss those December 7, 2023 minutes and ratify the vote regarding those minutes at a future meeting held in compliance with FOIA's open meeting requirements.
CONCLUSION
Based on the foregoing, we conclude that the Village's Governance Task Force violated FOIA by conducting a "meeting" through email without satisfying FOIA's open 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:
Edward B. Rosenthal, Attorney for the Village of Arden
[1] Arden, Del., C. (Charter) § 4.
[2] Petition.
[3] The Petition included another claim regarding meetings held more than six months before the filing, which was previously dismissed as untimely.
[4] Response.
[5] 29 Del. C. § 10005(c).
[6] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[7] 29 Del. C. § 10004.
[8] See Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 5 (Apr. 25, 2017); Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 4 (May 19, 2003).
[9] Del. Op. Att'y Gen. 06-ID20, 2006 WL 2724980, at 2 (Sept. 11, 2006) (quoting Del. Op. Att'y Gen. 06-IB16, 2006 WL 2435111, at 4 (Aug. 7, 2006)).
[10] Id. (quoting Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 4).
[11] Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 2 (quoting Wood v. Battleground Sch. Dist., 27 P.3d 1208, 1217 (Wash. App. 2001)).
[12] Del. Op. Att'y Gen. 06-IB16, 2006 WL 2435111, at 4 (quoting Del. Op. Att'y Gen. 03-IB11, 2003 WL 21431171, at 5).
[13] 29 Del. C. § 10005.
[14] Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 7 (Del. Ch. Aug. 29, 1986).
[15] Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 15 (Del. Ch. May 19, 1994).