Does a private consulting firm's stakeholder focus groups have to be publicly noticed under Delaware's open meetings law?

Official title

17-IB10 06/15/2017 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council and the Planning and Zoning Commission of Sussex County

Plain-English summary

Sussex County hired McCormick Taylor, a private planning and engineering firm, to help write a new comprehensive land use plan, something state law requires every ten years. As part of its work, McCormick Taylor convened three stakeholder focus groups over two days in June 2016 to gather early input, picking the participants itself without direction from County Council or the Planning and Zoning Commission. No County Council member attended any focus group, and only one Planning Commission member showed up to a single session. A resident argued that these focus groups amounted to unnoticed "meetings" under FOIA, apparently on the theory that McCormick Taylor itself, or the focus groups, should be treated as a public body.

The AG rejected that theory. FOIA's open-meeting requirement only applies to a "meeting" of a "public body," and a meeting requires a quorum of an actual public body's members gathering to discuss public business. County Council and the Planning Commission are unquestionably public bodies, but no quorum of either one was ever at a focus group. That left the question of whether McCormick Taylor or the focus groups themselves counted as a public body in their own right. The AG said no: McCormick Taylor is a private firm that was hired through a normal public contracting process, not established or appointed by any government body the way FOIA's broad "public body" definition requires, and simply having an advisory role under a government contract doesn't turn a vendor into a public body. The focus groups likewise weren't a public body, because unlike a prior case where an informal working group with recurring, fixed membership including public officials was treated as covered by FOIA, these focus groups met only once, had no continuity, and weren't charged by any government entity with investigating or recommending anything; they were simply a way for the consultant to gather input before the real public process, including open County Council and Planning Commission meetings on the actual plan recommendations, got underway.

Currency note

This opinion was issued in 2017. 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

Q: If a county hires a private consultant to help plan a project, does that consultant become subject to Delaware's open meetings law?
A: No, according to this opinion. A private firm hired through an ordinary government contract isn't a "public body" under FOIA just because its role is advisory; FOIA's definition requires the entity to have been established, appointed, or otherwise empowered by a government body in a more formal way than a standard consulting engagement.

Q: Do "focus groups" run by an outside consultant have to be open to the public?
A: Under this opinion's reasoning, not automatically. The AG looked at whether the group had continuity of membership, included public officials, and was charged with making recommendations back to a government body; ad hoc, one-time stakeholder sessions organized solely by the consultant didn't meet that bar.

Q: What would make an informal working group count as a "public body" under FOIA?
A: This opinion points to a contrasting prior case where a group formed by the Governor, with recurring monthly meetings over six months, a fixed roster including sitting legislators and other officials, and an explicit charge to produce recommendations that became legislation, was found to be a public body. The focus groups here had none of those features.

Q: Does the fact that a government official happened to attend one session automatically make it a public meeting?
A: No, per this opinion. A single county official's attendance at one focus group, without more, doesn't establish that the group was functioning as an official committee, especially where no quorum of the relevant public body was present.

Background and statutory framework

FOIA requires every "meeting" of a "public body" to be open, subject to limited exceptions, 29 Del. C. § 10004(a), consistent with FOIA's declared policy that public business be conducted openly so citizens can monitor government decisions, 29 Del. C. § 10001. A "meeting" is the formal or informal gathering of a quorum of a public body's members to discuss or act on public business, 29 Del. C. § 10002(g), and "public body" is defined broadly to include entities established, appointed, or otherwise empowered by a government body to advise or make recommendations, 29 Del. C. § 10002(h). Public bodies must give advance meeting notice and agendas, 29 Del. C. § 10004(e), and prepare minutes, 29 Del. C. § 10004(f). Sussex County's governance structure, including County Council's role and quorum requirements and the Planning and Zoning Commission's composition and duty to prepare a comprehensive land use plan for Council's approval, is set out across several Title 9 provisions (9 Del. C. §§ 6101(2), 6802, 6803, 6804(b), 6807(a), 6953, 6960, and 7002), and state law requires counties to review and update their comprehensive plans for state certification every ten years, 9 Del. C. § 6953(b) and § 6960(a). The opinion distinguished its own prior determination in Del. Op. Att'y Gen. 13-IB05, where a Governor-formed working group with fixed, recurring public-official membership was found to be a public body, from the ad hoc, single-session focus groups at issue here.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. § 10001, FOIA's declaration of policy
• 29 Del. C. § 10002(g), definition of "meeting"
• 29 Del. C. § 10002(h), definition of "public body"
• 29 Del. C. § 10004(a), requirement that public body meetings be open
• 29 Del. C. § 10004(e), meeting notice and agenda requirements
• 29 Del. C. § 10004(f), minutes requirements
• 29 Del. C. § 10005(e), petition process for a FOIA determination
• 9 Del. C. §§ 6101(2), 7002, definition of Sussex County government and County Council
• 9 Del. C. §§ 6802, 6803, Planning and Zoning Commission's establishment and composition
• 9 Del. C. § 6803(a), Planning and Zoning Commission's voting and ex-officio members
• 9 Del. C. § 6804(b), Planning and Zoning Commission quorum requirement
• 9 Del. C. § 6807(a), Planning and Zoning Commission's duty to prepare and recommend the comprehensive plan
• 9 Del. C. §§ 6807(a), 6953(a)(2), County Council's authority to approve the comprehensive plan
• 9 Del. C. § 6953(b), requirement that counties maintain comprehensive land use plans
• 9 Del. C. § 6960(a), ten-year plan review and state certification requirement
• 9 Del. C. § 7002(a), County Council members' four-year terms
• 9 Del. C. § 7002(k)(3), County Council quorum requirement

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/06/15/17-ib10-06152017-foia-opinion-letter-to-mr-daniel-kramer-re-foia-complaint-concerning-sussex-county-council-and-the-planning-and-zoning-commission-of-sussex-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/06/Attorney-General-Opinion-No.-17-IB10.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB10

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB10

June 15, 2017

VIA U.S. MAIL & EMAIL

Daniel J. Kramer

8041 Scotts Store Rd

Greenwood, DE 19950

[email protected]

RE: FOIA Petition Regarding Sussex County Council and the Planning and Zoning Commission of Sussex County

Dear Mr. Kramer:

We write in response to your correspondence, dated July 18 2016, alleging that Sussex County Council and the Planning and Zoning Commission of Sussex County (collectively, “ Respondents ”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“ FOIA ”). Specifically, you allege that Respondents violated FOIA’s “open meeting” provisions by failing to provide public notice of several “focus group” meetings held on June 23 and 24, 2016 in connection with the county’s efforts to revise its comprehensive land use plan. We treat your correspondence as a petition under 29 Del. C. § 10005(e) for a determination as to whether a violation of FOIA has occurred. Pursuant to our routine process in responding to petitions for determination, we invited Respondents to submit a written response to the petition. We received their response on August 1, 2016. We subsequently requested and, on June 1, 2017, received supplemental information concerning Respondents’ respective roles in the comprehensive plan process. For the reasons discussed below, we conclude that Respondents did not violate FOIA as alleged in the petition.

BACKGROUND

Sussex County “government” is expressly defined as County Council, a five-member legislative body, but the concept also encompasses various administrative departments and advisory bodies, including the Planning and Zoning Commission. [1] The members of County Council serve four-year terms. [2] A quorum of County Council consists of three members. [3] County Council has ultimate responsibility for, among other things, approving a comprehensive land use plan for the county. [4]

The Planning and Zoning Commission is a seven-member advisory panel with five voting members appointed by County Council and two nonvoting ex-officio members. [5] A quorum consists of three voting members. [6] The commission acts as an advisory body to County Council on various land use and zoning matters. The commission is expressly tasked with preparing the county’s comprehensive land use plan and making a recommendation to County Council regarding same. [7]

Delaware law requires all county governments to have comprehensive land use plans. [8] Counties are required to review and update their plans for State certification every 10 years. [9] Sussex County’s plan was adopted and approved in 2008. [10] By law, County Council must approve a new or revised plan in 2018.

At some point in early 2015, County Council initiated a public procurement process to identify consultants to assist with planning-related matters. In September 2015, after a public meeting, County Council selected McCormick Taylor, Inc. (“ McCormick Taylor ”), a planning and engineering firm, to assist County Council in preparing a new comprehensive land use plan. [11]

On March 1, 2016, County Council held a public workshop, during which representatives of McCormick Taylor laid out a general timeline for the plan process. [12] The minutes of that meeting reflect a specific discussion of how the county and McCormick Taylor would be reaching out to and interfacing with members of the public through focus groups and public meetings. [13]

On June 23 and June 24, 2016, McCormick Taylor convened three focus groups to solicit input and gather information from various stakeholders in the community in advance of the anticipated public meetings. [14] The record reflects that McCormick Taylor identified the stakeholders and invited them to the focus group events, without input or approval of County Council or the Planning and Zoning Commission. [15]

The record contains no evidence that any member of County Council attended the focus group events. One member of the Planning and Zoning Commission attended a focus group event on June 24, 2016. [16]

POSITIONS OF THE PARTIES

As we interpret the petition, you maintain that Respondents violated FOIA because the June 2016 focus group events were not noticed or otherwise conducted in accordance with FOIA’s open meeting requirements. You have not alleged, and the facts do not show, that a quorum of County Council or the Planning and Zoning Commission was present for any focus group event. As best we can ascertain, your argument presupposes that McCormick Taylor and/or the focus groups themselves are public bodies. Apparently, based on this fundamental assumption, you maintain that the focus group events were “meetings” as defined in 29 Del. C. § 10002(f) and were therefore subject to the notice and other requirements set forth in 29 Del. C. § 10004. We find no persuasive or other legal authority supporting your position.

Respondents point out that, in order for FOIA’s public meeting requirements to apply to a particular gathering, the party holding the meeting must be a “public body” as defined in FOIA. Respondents argue that McCormick Taylor is not a public body. Respondents assert that McCormick Taylor is a private, third-party planning and engineering firm, not a “regulatory, administrative, advisory, executive, appointive or legislative body,” as required by 29 Del. C. § 10002(h). Respondents further assert that McCormick Taylor was hired as a consultant and was not “established,” “appointed,” or “otherwise empowered” within the meaning of 29 Del. C. § 10002(h). According to Respondents, because McCormick Taylor is not a public body, it necessarily follows that the focus group events were not “meetings” covered by FOIA’s open meeting requirements.

Respondents do not specifically address whether the focus groups were public bodies covered by FOIA.

RELEVANT STATUTES

FOIA begins with an express declaration of policy. [17] Section 10001 memorializes the General Assembly’s intent that public business “be performed in an open and public manner” so that citizens can “observe the performance of public officials” and “monitor the decisions that are made by such officials in formulating and executing public policy.” [18] Section 10001 instructs that FOIA’s provisions are to be construed in light of these policies and consistent with the goal of furthering the accountability of government to the citizens of this State. [19]

Section 10004(a), with certain exceptions not relevant here, requires that every “meeting” of a “public body” be open to the public. [20] Section 10002(g) defines a “meeting” as “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 either in person or by video-conferencing.” [21] Public bodies generally are required to provide advance notice of and agendas for all of their meetings. [22] Public bodies also must prepare and make available to the public minutes of their meetings. [23]

FOIA’s open meeting requirements apply, on their face, only to the meetings of a “public body.” [24] That phrase is specifically defined in Section 10002(h) as:

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:

Is supported in whole or in part by any public funds; or

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

Is impliedly or specifically charged by any public official, body, or agency to advise or to make reports, investigations or recommendations. [25]

Though Section 10002(h) is expansive and covers a wide array of entities associated with the executive and legislative branches of state and local government, the statute has its limits. This matter tests the boundaries of Section 10002(h).

DISCUSSION

The petition requires us to determine whether the June 2016 focus group events were “meetings” of a “public body,” as those terms are defined in FOIA. We answer this question in the negative.

As an initial matter, we note that Respondents are “public bodies” under Section 10002(h). County Council and the Planning and Zoning Commission. Both entities were “established” by acts of the General Assembly. [26] The focus group events, however, were not “meetings” of either County Council or the Planning and Zoning Commission.

Pursuant to Section 10002(g), there is no “meeting” absent a “formal or informal gathering of a quorum of the members of a[] public body.” [27] No member of County Council attended any of the focus group events. Only one member of the Planning and Zoning Commission participated, and only in one focus group. No focus group event, or all of them combined, contained a quorum of either body.

We turn to your suggestion that McCormick Taylor, and perhaps the focus groups themselves, are “public bodies” within the meaning of Section 10002(h). If so, the focus group events conceivably could constitute “meetings” under Section 10002(g). We conclude that neither McCormick Taylor, nor any focus group, meets the definition of a “public body” under Section 10002(h). It follows that the focus group events were not “meetings” as defined in FOIA.

McCormick Taylor is not a “public body” within the meaning of Section 10002(h). McCormick Taylor is a private entity that was engaged through a public procurement process to perform consulting services in connection with Sussex County’s formulation of a new comprehensive land use plan. McCormick Taylor is not a “regulatory, administrative, advisory , executive, appointive or legislative body [of county government].” [28] While McCormick Taylor’s engagement may be “advisory” in nature, the same holds true for most if not all contractual arrangements between a state or local governmental entity and an outside consultant. Further, McCormick Taylor lacks fundamental traits of a governmental “body,” as laid out in the text of Section 10002(h).

McCormick Taylor was not formed or empowered as contemplated in Section 10002(h). McCormick Taylor was not “established” or “appointed” by ordinance, resolution or other formal or informal action of County Council, the Planning and Zoning Commission or any other governmental entity or public official. McCormick Taylor is a corporation formed and run by private citizens. [29] The mere fact that McCormick Taylor may have been operating within the scope of its consulting engagement does not, without more, support a determination that the firm was “otherwise empowered” within the meaning of Section 10002(h). The definition of “public body” cast a wide net indeed, but we do not think it was intended to encompass every vendor or outside service provider based solely on the existence of a government contract.

The focus groups also do not constitute public bodies. This Office has on numerous occasions addressed whether informal working or similar groups can be “public bodies” within the meaning of Section 10002(h). [30] In Del. Op. Att’y Gen. 13-IB05, we answered that question in the affirmative and determined that a 24-member informal working group was a public body. That working group, advisory in nature, was formed by the Governor via letter invitation and tasked with making recommendations for changes to Delaware’s charter school laws. [31] The working group included a number of public officials, including members of the General Assembly and the State Board of Education, and various private stakeholder groups. [32] The working group members held monthly meetings for approximately six months, worked together collaboratively over that period and ultimately issued recommendations that were incorporated into legislation. [33] The public and private constituent groups were fixed at the outset and did not change during the course of the working group’s existence. [34]

The focus groups at issue here are distinguishable from the working group in Del. Op. Att’y Gen. 13-IB05. The focus groups were not formed, directly or indirectly, by a governmental entity or public official. The focus groups were created and run by McCormick Taylor, without input from or oversight by County Council or the Planning and Zoning Commission. [35] The focus groups contained no members of County Council and, at most, one member of the Planning and Zoning Commission. [36] In contrast to the working group in Del. Op. Att’y Gen. 13-IB05, the focus groups met only once, had little or no continuity of membership or interaction and were not impliedly or specifically charged with conducting investigations or making reports or recommendations. The focus groups were vehicles for McCormick Taylor to solicit and gather preliminary information from various stakeholders in advance of anticipated public meetings. They were not public bodies within the meaning of Section 10002(h).

We note there is no evidence to suggest that Respondents or McCormick Taylor used the focus groups to frustrate the goals of FOIA. To the contrary, County Council selected McCormick Taylor through a public process and convened a public workshop to explain the plan process to the public, including McCormick Taylor’s role in that process. There will be one or more open meetings during which the Planning and Zoning Commission will consider publicly McCormick Taylor’s plan-related recommendations, followed by one or more open meetings during which County Council will consider publicly the Planning and Zoning Commission’s recommended plan. Members of the community will have adequate opportunities to observe the performance of their public officials.

CONCLUSION

For the reasons set forth above, we conclude that Respondents did not violate FOIA in connection with the June 2016 focus group events.

Very truly yours,

/s/ Jason W. Staib

Jason W. Staib

Deputy Attorney General

APPROVED BY:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc: J. Everett Moore, Esq. (via email)

[1] See 9 Del. C. §§ 6101(2), 7002.

[2] See 9 Del. C. § 7002(a).

[3] See 9 Del. C. § 7002(k)(3).

[4] See 9 Del. C. §§ 6807(a), 6953(a)(2).

[5] See 9 Del. C. § 6803(a).

[6] See 9 Del. C. § 6804(b).

[7] See 9 Del. C. § 6807(a).

[8] See 9 Del. C. § 6953(b).

[9] See 9 Del. C. § 6960(a).

[10] See https://www.sussexcountyde.gov/comprehensive-plan (last visited June 15, 2017).

[11] See County Council meeting minutes from September 29, 2015, at p.5, accessible at https://www.sussexcountyde.gov/sites/default/files/minutes/092915.pdf (last visited June 15, 2017).

[12] See County Council meeting minutes from March 1, 2016, at pp. 13-14, accessible at https://www.sussexcountyde.gov/sites/default/files/minutes/030116.pdf (last visited June 15, 2017).

[13] See id ., p. 14.

[14] See Letter from J. Everett Moore, Jr. Esq., dated August 1, 2016, at p. 2.

[15] See id . at p. 3.

[16] See id . The June 24, 2016 event was held at the offices of the Sussex Economic Development Action Committee, Inc. (“ SEDAC ”), a non-governmental entity that provides guidance to the county on ways to strengthen economic development efforts and bring jobs and prosperity to the community. According to Respondents, Commissioner Robert Wheatley attended the focus group event in his capacity as an ex-officio member of SEDAC, not as a member of the Planning and Zoning Commission. For present purposes, we assume, without deciding, that Commissioner Wheatley’s attendance at the June 24, 2016 event would count toward the existence of a quorum of the Planning and Zoning Commission, notwithstanding his alleged status solely as an ex-officio member of SEDAC.

[17] See 29 Del. C. § 10001.

[18] Id .

[19] See id .

[20] 29 Del. C. § 10004(a).

[21] 29 Del. C. § 10002(g).

[22] See generally 29 Del. C . § 10004(e).

[23] See 29 Del. C . § 10004(f).

[24] See 29 Del. C. § 10004(a).

[25] 29 Del. C. § 10002(h).

[26] See 9 Del. C. §§ 6101(2), 7002; 9 Del. C. §§ 6802, 6803.

[27] 29 Del. C. § 10002(g).

[28] 29 Del. C. § 10002(h) (emphasis added).

[29] S ee Del. Op. Att’y Gen. 15-IB05, 2015 WL 4850416, *2 (July 31, 2015) (determining that a nonprofit senior center established by private citizens was not a public body because it was not formed in the manner specified in section 10002(h)).

[30] See , e.g. , Del. Op. Att’y Gen. 13-IB05, 2013 WL 5615224, at 4 (Oct. 1, 2013) (concluding that informal 24-member working group tasked with making recommendations for changes to Delaware’s charter school laws was a public body); Del. Op. Att’y Gen. 11-IB02, 2011 WL 1428936, at 2 (Mar. 16, 2011) (determining that city did not violate FOIA where finance director invited “stakeholders” to participate in and convened focus groups to discuss city’s electric rate structure); Del. Op. Att’y Gen. 06-IB03, 2006 WL 1242013, at 3 (Jan. 23, 2006) (2006) (“[W]e determine that the individuals who gathered [to discuss town charter amendments] at Councilman Chervenak’s office on November 28, 2005 — two current Council members, a State legislator, a former Cabinet Secretary, and former Town office-holders or candidates for office – as a group cannot be viewed as a single body subject to the open meeting law.”); Del. Op. Att’y Gen. 02-IB08, 2002 WL 970059, at 5 (Apr. 4, 2002) (determining that informal meetings between County Attorney, the Chairman of the County Board of Elections and private consultant concerning redistricting were not “advisory group” as contemplated in FOIA); Del. Op. Att’y Gen. 01-IB15, 2001 WL 1593115, at 5 (Oct. 23, 2001) (determining that meetings between County Administrator and his department heads and staff to develop a recommended budget did not constitute an “advisory board” to or “committee” of County Council); Del. Op. Att’y Gen. 99-IB15, 1999 WL 33100497, at 2 (Dec. 9, 1999) (noting that “joint” meeting of public officials from different public bodies and representatives of an outside consultant can be a public body); Del. Op. Att’y Gen. 98-IB02, 1998 WL 148676, at *3 (Jan, 30, 1998) (concluding that “ad hoc committee” of town council violated FOIA by conducting non-public workshops on the town’s local land use plan).

[31] See Del. Op. Att’y Gen. 13-IB05, 2013 WL 5615224, at *2.

[32] See id .

[33] See id .

[34] See id . at *4.

[35] See Del. Op. Att’y Gen. 02-IB08, 2002 WL 970059, at *5 (Apr. 4, 2002) (determining that County Council did not “establish” a redistricting advisory group where County Council did not select its members or hold significant influence over the group’s meetings).

[36] The mere presence of one county official from the Planning and Zoning Commission at one focus group meeting does not establish that any particular focus group was an ad hoc committee of County Council or the Planning and Zoning Commission. We have found the existence of ad hoc committees where public officials, invoking the quorum requirement, deliberately attempt to circumvent FOIA’s open meeting requirements. See , e.g. , Del. Op. Att’y Gen. 98-IB02, 1998 WL 148676, at *3 (“Even if less than a quorum of the Town Council was present at the . . . workshops, we find that they constituted an ad hoc committee of the Council and therefore their meeting, without notice to the public, violated FOIA.”). The facts here do not support such finding.