Does a nonprofit animal cruelty society have to hold open board meetings if it gets a small state grant?

Official title

12-IIB05 RE: Freedom of Information Act Against KCSPCA

Plain-English summary

State Senator Patricia Blevins asked the AG to investigate after a constituent, Carol Furr, and several others were denied access to a February 13, 2012 board meeting of the Kent County Society for the Prevention of Cruelty to Animals (KCSPCA). The KCSPCA's attorney argued the organization was not a "public body" under FOIA at all, so its board meetings did not have to be open.

The AG disagreed. Delaware's FOIA defines "public body" using a two-part test: an entity must fit one of several structural descriptions, like being an association or group established by a body the General Assembly created, and also meet at least one of three funding or authority criteria: public funding, spending public funds, or being charged with investigative or advisory duties. The KCSPCA is a nonprofit corporation chartered by the Secretary of State, an office the General Assembly created, satisfying the first part. It also met the second part twice over: it received a $3,000 state grant-in-aid, and Delaware law specifically empowers KCSPCA's members and agents to enforce the state's animal cruelty laws, which necessarily includes the power to investigate. Because the KCSPCA checked both boxes, the AG found it was a public body whose board meetings are subject to FOIA's open-meetings requirements, and that denying access to the February 13 meeting violated the law.

Currency note

This opinion was issued in 2012. 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

Does a private nonprofit have to open its board meetings to the public just because it gets some state funding?

Under this opinion, yes, if it also meets FOIA's other criteria. The AG found KCSPCA qualified as a "public body" because it was both an association established by a state-created office and was supported by public funds, here, a small state grant-in-aid, and specifically empowered to enforce state law.

Does an organization have to be formally called a "government agency" to count as a public body under Delaware's FOIA?

No, according to this opinion. The AG found a private nonprofit corporation like KCSPCA could be a "public body" through its Secretary of State charter, its public funding, and its statutory law-enforcement authority, without ever being formally labeled a government agency.

Does enforcing a state law necessarily include the power to investigate, even if the statute doesn't say so?

Yes, according to this opinion. The AG reasoned that the mandate to enforce Delaware's animal cruelty laws necessarily implies a corresponding duty to investigate, since enforcement authority "cannot be exercised without authority to make investigations."

Background and statutory framework

FOIA defines "public body" as, among other things, any "association, group, panel, council" established by a body the General Assembly created, that either is supported in whole or part by public funds, expends or disburses public funds, or is charged, impliedly or specifically, to advise or make reports, investigations, or recommendations. 29 Del. C. § 10002(c). Petitions asking the AG to determine a FOIA violation proceed under 29 Del. C. § 10005(e), and meetings of a public body are subject to FOIA's open-meeting requirements, 29 Del. C. § 10004.

The AG found KCSPCA was a Delaware nonprofit corporation chartered through the Secretary of State, itself an office established by the General Assembly, satisfying the structural half of the test. On the funding and authority half, KCSPCA received a $3,000 grant-in-aid from the state in the relevant General Assembly session (smaller or larger grants in the two prior sessions), and Delaware law specifically empowers KCSPCA's members and agents "to enforce all laws which are enacted for the protection of dumb animals," 3 Del. C. § 7902, offenses defined in Delaware's criminal code at 11 Del. C. § 1325. The AG reasoned that this enforcement mandate necessarily implies investigative authority, since "authority to enforce cannot be exercised without authority to make investigations." Meeting both halves of the statutory test, KCSPCA qualified as a public body subject to FOIA's open-meetings requirements for its board of directors.

Citations

• 29 Del. C. § 10002(c) (defining "public body")
• 29 Del. C. § 10005(e) (petition procedure for AG determination of FOIA violations)
• 29 Del. C. § 10004 (open-meeting requirements for public bodies)
• 3 Del. C. § 7902 (KCSPCA empowered to enforce animal cruelty laws)
• 11 Del. C. § 1325 (defining acts that constitute cruelty to animals)

Source

• Landing page: https://attorneygeneral.delaware.gov/2012/03/27/12-iib05-re-freedom-of-information-act-against-kcspca/
• Original PDF: not linked from landing page

Original opinion text

2012 WL 1244481 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 12-IIB05

March 27, 2012

*1 Patricia Blevins

Senator

Legislative Hall

and

Ms. Carol Furr

OPINION

Senator Blevins has requested that we investigate whether the denial of public access to the February 13, 2012 meeting of the Board of directors of the Kent County Society for the Prevention of Cruelty to Animals (“KCSPCA”) was a violation of the Delaware Freedom of Information Act, 29 Del C. ch. 100 (“ FOIA ”). Senator Blevins’ request is based on an email she received from Ms. Carol Furr relating how she and several others were denied access to that meeting.

In accordance with 29 Del. C. § 10005 (e), we are treating that request as a petition for a determination as to whether FOIA has been violated.

On March 8, 2012 we referred the Petition to Steven Schwartz, Esquire, legal counsel to the KCSPCA for its response. Mr. Schwartz by letter dated March 15, 2012 responded, contending that the KCSPCA was not a “public body” as defined by FOIA and, hence, was not subject to its open meeting requirements.

We conclude to the contrary, that the KCSPCA is a “public body,” that the meeting of its Board on February 13, 2012 was a public meeting subject to the open meeting requirements of FOIA , § 1004, and that the denial of public access to that meeting violated FOIA .

ANALYSIS

The term “public body” is defined at 29 Del C. § 10002 (c) as follows:

(c) “ Public body” means , unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative 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, which :

(1) Is supported in whole or in part by any public funds; or

(2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or

(3) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. [Emphasis supplied.]
Our analysis reveals that KCSPCA meets these criteria because (1) it is an association or group established by a body established by the General Assembly, and (2) it is specifically empowered by a state government entity, (3) to make investigations 1 and to enforce all of Delaware’s animal anti-cruelty laws, and (4) that it is supported, at least in part, by public funds and (5) that it expends those public funds.

*2 This definition means that any entity is a “public body” if it meets both (1) any of the criteria in the lettered paragraph (c) and (2) any of the criteria of the numbered subparagraphs (1)-(3).

The following facts show how the KCSPCA meets the criteria of lettered subparagraph (c) and its sub-subparagraphs (1) and (3):

The KCSPCA is Delaware corporation whose Certificate of Incorporation was filed with the Delaware Secretary of State on June 26, 1964. Its Certificate of Incorporation declares that it will conduct its business so as to qualify as a not-for-profit organization under § 501 (c) (3) of the Internal Revenue Code as a membership organization with a Board of Trustees. Accordingly, it is an “association” or “group” established by an act of the Secretary of State which, in turn, is established by the General Assembly.

The KCSPCA meets the criteria set out in sub-subparagraph (1) because it is supported, at least in part, by public funds, which, in the 146 th General Assembly, consisted of a grant-in-aid of $3,000. 2 See 78 Del. Laws 77. 3

Finally, the KCSPCA meets the criteria set out in sub-subparagraph (3) because its members and agents are empowered specifically by the General Assembly, a state governmental entity, to enforce “all laws which are enacted for the protection of dumb animals.” 3 Del C. § 7902 . 4

CONCLUSION

For these reasons, we determine that the KSCPCA is a “public body,” as defined by FOIA , and that, accordingly, it must comply with all the open meeting requirements of FOIA , including public access to the meetings of its board of directors or trustees.

We reserve the right to pursue any remedies we may have under 29 Del. C. § 10005 .

Very truly yours,

Kent Walker

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
While those statutes charging KCSPCA with the enforcement of the animal anti-cruelty laws do not specifically mention “investigation,” we have no doubt that those mandates to enforce necessarily imply a corresponding duty to make investigations. In other words, authority to enforce cannot be exercised without authority to make investigations.

2
In the 145 th General Assembly, it received a grant-in-aid of $3,600 and in the 144 th General Assembly a grant-in-aid of $4,600.

3
Although grants-in-aid were initially excluded from the definition of “public funds,” that exclusion has since been removed. See 64 Del. Laws c. 113.

4
Acts that constitute “Cruelty to Animals” are set out in Delaware’s criminal code at 11 Del. C. 1325 .

2012 WL 1244481 (Del.A.G.)