If a Delaware board privately discusses and decides an appeal without a valid reason for executive session, does that automatically undo its decision?

Official title

06-IB01 RE: F.O.I.A. Complaint Against the City of Wilmington Board of License and Inspection Review

Plain-English summary

An attorney's client had asked the City of Wilmington Board of License and Inspection Review to waive a vacant-building registration fee. After the public hearing, the client's representative stayed in the room to watch the board deliberate, but the board asked him to leave and closed the doors before discussing the merits. The city admitted this was a mistake: none of FOIA's nine authorized reasons for a closed-door executive session covered deliberating on a routine fee waiver, and Delaware law doesn't recognize any general "deliberative process" privilege that would let a public body hide its reasoning from the public. The city argued the complaint came too late anyway, since it was filed nearly six months after the private deliberation.

The AG rejected the timeliness defense (the statute's 60-day/6-month filing window applies to citizen lawsuits in Chancery Court, not to complaints filed with the AG's office, and this complaint fell within the AG's own six-month practice for investigating). On the merits, the AG agreed the board violated the open meeting law. But the opinion stopped short of ordering the city to fix anything: the fee dispute was already before the Superior Court in a separate proceeding, and that court had both the power to rule on the merits and the power to consider the FOIA violation as a procedural ground for overturning the board's decision. Rather than duplicate what the Superior Court could already do, the AG left the matter there, noting the board had since started deliberating in public.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware public body deliberate privately on a routine appeal just to keep its internal discussion out of public view?

No, according to this opinion. The AG found Delaware law recognizes no general "deliberative process" privilege letting a public body discuss its reasoning behind closed doors; a closed session is lawful only if it fits one of FOIA's specific, enumerated purposes.

Does the 60-day/6-month deadline to sue over an open-meeting violation also apply to complaints filed with the Delaware Attorney General?

No, according to this opinion. The AG found that statutory deadline governs citizen lawsuits filed in the Court of Chancery, while the AG's office applies its own separate practice of generally investigating complaints received within six months of the alleged violation.

If the Attorney General finds a Delaware public body violated the open meeting law, does that automatically overturn the body's decision?

Not automatically, according to this opinion. The AG found a violation here but declined to order a remedy because the same fee dispute was already pending in Superior Court, which had its own authority to decide both the merits and the procedural FOIA question.

Background and statutory framework

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" as authorized by statute for executive session, 29 Del. C. §10004(a), and lists nine specific purposes for which a public body may meet privately, id. §10004(b)(1)-(9). Separately, FOIA lets a citizen challenge an action taken in violation of the statute by filing suit in the Court of Chancery "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," id. §10005(a). The AG read that filing deadline as applying only to citizen lawsuits, not to the AG's own administrative review under a different subsection, though the AG's office has separately adopted, as a matter of practice rather than statutory command, a general policy of declining to investigate complaints about conduct more than six months old.

On the merits, the AG relied on the Delaware Court of Chancery's Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board for the rule that Delaware recognizes no "deliberative process" privilege letting a public body meet privately just to shield its internal reasoning; the General Assembly has instead carved out only a handful of specific boards, listed in 29 Del. C. § 10004(h), that may deliberate privately as a matter of course, and the license and inspection board here was not among them. On remediation, the AG applied the standard from the Delaware Court of Chancery's Ianni v. Department of Elections of New Castle County for directing a remedy when a violation affects "substantial public rights," but, citing the Delaware Court of Chancery's Goicuria v. Industrial Accident Board for the principle that a reviewing court already has power to consider a FOIA violation as a procedural ground for challenging an agency's decision, the AG declined to duplicate that authority given the parallel Superior Court proceeding already underway over the same fee dispute.

Citations

• 29 Del. C. §10004(a) (meetings of public bodies must be open to the public except authorized executive sessions)
• 29 Del. C. §10004(b)(1)-(9) (nine enumerated purposes authorizing a private executive session)
• 29 Del. C. §10005(a) (60-day/6-month deadline for a citizen to challenge a public body's action in the Court of Chancery)
• 29 Del. C. § 10004(h) (specific boards authorized to deliberate privately, such as the Board of Pardons and Parole)
• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-K, 1994 WL 274295 (Del. Ch., May 19, 1994) (Delaware state court; no general deliberative-process privilege exists under FOIA or Delaware common law)
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch., Aug. 29, 1986) (Delaware state court; remediation is warranted when a FOIA violation affects substantial public rights)
• Goicuria v. Industrial Accident Board, No. 1356-K, 1997 WL 599514 (Del. Ch., Aug. 28, 1997) (Delaware state court; a reviewing court may consider a FOIA violation as a procedural ground for appeal)

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/01/04/06-ib01-010406-re-f-o-i-a-complaint-against-the-city-of-wilmington-board-of-license-and-inspection-review/
• Original PDF: not linked from landing page

Original opinion text

January 4, 2006

Civil Division-Kent County (739-7641)

06-IB01

Mr. John R. Weaver, Jr., Esquire

831 North Tatnall Street, Suite 200

Wilmington, DE 19801

Re: Freedom of Information Act Complaint

Against City of Wilmington Board of License

and Inspection Review

Dear Mr. Weaver:

On November 8, 2005, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Ch.100 ("FOIA"), alleging that the City of Wilmington Board of License and Inspection Review ("the Board") violated the open meeting requirements of FOIA by meeting in private on May 9, 2005 to decide an appeal by your client, 801 Shipley Street, for a one-time waiver of a vacant building registration fee.

By letter dated November 15, 2005, we asked the City of Wilmington to respond to your complaint by November 28, 2005. We granted the City's request for an extension of time and received their initial response to your complaint on December 5, 2005. On December 14, 2005, we asked the City for supplemental information, which we received on December 16, 2005. On December 28, 2005, we asked the City for additional information, which we received on December 29, 2005. On January 3, 2005, we telephoned you for additional information in order to complete our investigation.

In the City's initial response to your complaint dated December 5, 2005, the City acknowledged that on May 9, 2005 the Board "did deliberate the merit of cases that were before it in an executive session and out of the purview of the public" for a purpose not authorized by FOIA for private discussion. In mitigation, the City contends "this was done inadvertently and not with malicious intent by the Board. The Board clearly articulated the basis of its decision in its October 18, 2005 letter to the complainant. At worse, it was harmless error for the Board to deliberate in executive session."

In a supplemental response to your complaint dated December 13, 2005, the City argues that your complaint is barred by the statute of limitations under FOIA. According to the City, you were "aware of the alleged improper action as early as May 9, 2005" and therefore you were "required under FOIA to file [your] complaint" within sixty days of that date (prior to July 9, 2005).

RELEVANT STATUTES

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" as authorized by statute for executive session. 29 Del. C. §10004(a).

FOIA authorizes a public body to discuss matters of public business privately in executive session for nine specific purposes. See 29 Del. C. §10004(b)(1)-(9).

FOIA provides that "[a]ny action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery. Any 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." 29 Del. C. §10005(a).

LEGAL AUTHORITY

A. Statute of Limitations

Our Office has taken the position that the time limitations "in Section 10005 [of FOIA] do not apply to the Attorney General because the statute of limitations does not run against the sovereign." Att'y Gen. Op. 02-IB10 (Apr. 24, 2003). The sixty day/six month statute of limitations in Section 10005(a) applies only to suits a citizen may bring in Chancery Court. It does not apply to complaints under Section 10005(e) brought to the Attorney General's office for administrative review.

Our Office, however, has consistently declined to investigate FOIA complaints of a violation of the open meeting laws where the alleged violation took place more than six months before the complaint was received by our Office. "As a general rule, for fairness and practical reasons, we do not investigate events that occurred more than six months before we received the complaint." Att'y Gen. Op. 02-IB10 (Apr. 24, 2002). Accord Att'y Gen. Op. 05-IB26 (Aug. 29, 2005); Att'y Gen. Op. 94-IO16 (Apr. 7, 1994); Att'y Gen. Op. IO28 (Sept. 21, 1993); Att'y Gen. Op. 93-IO06 (Mar. 5, 1993).

Your complaint alleges that the Board violated the open meeting law on May 9, 2005 when it met in executive session for a purpose not authorized by law. Our Office received your complaint on November 8, 2005. Because your complaint falls within our six-month rule, we have investigated and will make a written determination under Section 10005(e) of FOIA.

B. May 9, 2005 Executive Session

The City provided us with a copy of the notice and agenda for the May 9, 2005 meeting of the Board. The agenda listed fourteen property matters, including "801 Shipley Street" which is the subject of your complaint.

According to your complaint, "[d]irectly following the hearing, my client remained in the council room where the hearings were held to view the deliberations of the Board. The Board refused to permit my client to remain and told the officer of my client to leave. The doors were closed behind him and deliberations occurred in private."

The City provided us with a copy of the Board's case decision in the matter of 801 Shipley Street (a letter dated October 18, 2005). The Board denied your client's request for a one-time waiver of the vacant building registration fees "because the property has been occupied or leased for the entire period stated in the Vacant Property Registration Statement."

The City acknowledges that none of FOIA's nine exceptions for executive session would cover the deliberations of the Board about a waiver of building registration fees. Delaware law does not recognize a "deliberate process" privilege for public bodies like the Board. See Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, C.A. No. 1216-K, 1994 WL 274295, at p. 12 (Del. Ch., May 19, 1994) (rejecting the board's claim of a "deliberative process privilege for which no support exists in FOIA or in Delaware case law"). The General Assembly has authorized a few public bodies to deliberate in private, but they are the exception under FOIA. See 29 Del. C. § 10004(h) (Board of Pardons and Parole, Violent Crimes Compensation Board, Human Relations Commission, Industrial Accident Board, and Tax Appeals Board).

We determine that the Board violated the open meeting requirements of FOIA when it met in executive session on May 9, 2005 to discuss the 801 Shipley fee waiver appeal for a purpose not authorized by statute.

C. Remediation

In the past, when we have found a violation of the open meeting law, we directed remediation if a public body has taken action on a matter affecting "substantial public rights." Ianni v. Department of Elections of New Castle County, 1986 WL 9610, at p. 6 (Del. Ch., Aug. 29, 1986) (Allen, C.). We have previously determined that substantial public rights may be affected by the expenditure of public money, hiring key personnel, and actions affecting the right to vote.

In several cases, we have directed remediation where a public body violated the open meeting requirements of FOIA and took official action affecting land use. See Att'y Gen. Op. 05-IB15 (June 20, 2005) (approval of a residential subdivision); Att'y Gen. Op. 05-IB24 (Aug. 18, 2005) (compliance with zoning requirements); Att'y Gen. Op. 02-IB23 (Dec. 23, 2002) (conditional use exception for senior citizen retirement community).

According to the City, the vacant building registration fee assessed by the Board on the 801 Shipley property was $7,000. According to you, the amount of the fee is $13,500. Whatever the correct amount, this is a substantial right which would normally require remediation by our Office.

You have confirmed, however, that the matter is now pending before the Superior Court in a "city munition" action and that the Court has temporarily blocked the sheriff's sale of the 801 Shipley property pending review on the merits by the Court.

Under these circumstances, we decline to exercise our discretion to require remediation by the City of the Board's violation of the open meeting requirements of FOIA. The Superior Court could rule in your client's favor on the merits in the munition action, or you could petition the Superior Court in the pending action to invalidate the Board's decision based on an admitted violation of the open meeting law. See Goicuria v. Industrial Accident Board, No. 1356-K, 1997 WL 599514, at p. 2 (Del. Ch., Aug. 28, 1997) (Jacobs, V.C.) ("the Superior Court has the power to consider, in addition to any substantive grounds for appeal, procedural claims that the Board violated FOIA").

CONCLUSION

For the foregoing reasons, we determine that the Board violated the open meeting requirements of FOIA by meeting in executive session on May 9, 2005 to discuss the 801 Shipley fee waiver appeal for a purpose not authorized by statute.

Our Office does not direct any remediation for this violation because the matter of the vacant building registration fee is currently before the Superior Court. If the Court decides in your client's favor on the merits, then that will moot any issue of remediation for a FOIA violation. Alternatively, since the Superior Court has already entertained jurisdiction over the merits of the matter, the Court also has jurisdiction to decide any procedural claim that the Board violated the open meeting requirements of FOIA.

The City has advised that since December 19, 2005, the Board has begun to conduct its deliberations in public, so we trust that this issue will not arise in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Keith R. Brady, Esquire

Assistant State Solicitor

cc:

The Honorable Carl C. Danberg

Attorney General

Malcolm S. Cobin, Esquire

Chief Deputy Attorney General

Lawrence W. Lewis, Esquire

State Solicitor

Brenda James-Roberts, Esquire

First Assistant City Solicitor

Phillip G. Johnson

Opinion Coordinator