Are a county commissioner's personal handwritten notes used to make a motion a public record under Delaware FOIA?

Official title

17-IB66 12/29/2017 FOIA Opinion Letter to Mr. Dan Kramer re: FOIA Complaint Concerning Sussex County Council

Plain-English summary

At an October 2017 Sussex County Planning and Zoning Commission hearing, Commissioner Keller Hopkins moved to recommend approval of a conditional use application for a therapeutic horseback riding nonprofit, reading from handwritten notes he had prepared with help from an assistant county attorney. Daniel Kramer asked the county for a copy of those notes, but the county refused, calling them Commissioner Hopkins's personal notes rather than a public record, since they were created for his own convenience, never circulated, and were the kind of document the county's FOIA manual treats as private.

The AG agreed the notes were personal, even though a staff member had collected them after the meeting in case they helped clarify the official minutes. Delaware's own prior opinions establish that personal notes prepared solely for an individual's convenience, kept in a way suggesting private rather than official use, and left to the writer's discretion to keep or discard, are not public records, drawing on a Washington appellate decision defining the same concept. Because Commissioner Hopkins retained the discretion to discard his notes at any point, and staff only picked them up to assist the ministerial task of writing accurate minutes rather than because he submitted them as an official record, the AG found they stayed private. The full text of the motion was, in any event, independently available through the meeting's audio and video recording and its official minutes.

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

Are a public official's personal notes used during a meeting considered public records in Delaware?

Not automatically. This opinion applied a long-standing test: notes are personal, not public, if they were created solely for the individual's convenience, kept in a way that suggests private rather than official use, weren't circulated within the body, and could be discarded at the writer's discretion.

Does it matter that government staff briefly picked up a commissioner's notes after the meeting?

Not decisively, according to this opinion. The AG found that staff collecting the notes purely to help with the ministerial task of preparing accurate minutes, without the commissioner specifically submitting them as an official record, did not convert otherwise-private notes into a public record.

Could an official's personal notes ever become a public record?

Yes, based on this opinion's discussion of an earlier case: notes might qualify as a public record if the official specifically submits them to be made part of the body's official files, for example handing them to a town manager for the official record, rather than simply having staff glance at them afterward.

If personal notes aren't public, how can the public find out what was actually said or moved at a meeting?

Through the meeting's own official channels. The opinion noted the exact language of the motion at issue was independently available in the meeting's audio and video recording and its approved minutes, which remain public regardless of the note-taker's private materials.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005(e) over a records denial. FOIA's broad "public record" definition in 29 Del. C. § 10002(l) has long been read by the AG's office, consistent with a Washington appellate court's test in Yacobellis v. City of Bellingham, to exclude personal notes that are created solely for an individual's convenience, kept privately, not circulated within agency channels, and left to the writer's discretion to retain or discard. Prior AG opinions have applied this rule to a county land-use manager's personal notes and a councilman's notes not incorporated into official minutes or town records, and this opinion extended the same reasoning to a planning commissioner's handwritten notes used to deliver a verbal motion.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10002(l) (definition of "public record")
• Yacobellis v. City of Bellingham, 780 P.2d 272 (Wash. App. 1989) (test distinguishing personal notes from public records)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/01/03/17-ib66-12292017-foia-opinion-letter-mr-dan-kramer-re-foia-complaint-concerning-sussex-county-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/01/Attorney-General-Opinion-No.-17-IB66.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB66

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB66

December 29, 2017

VIA U.S. MAIL & EMAIL

Daniel J. Kramer

8041 Scotts Store Rd

Greenwood, DE 19950

[email protected]

RE: FOIA Petition Regarding Sussex County

Dear Mr. Kramer:

We write in response to your correspondence, received in its entirety on December 11, 2017,[1] alleging that Sussex County ("County") violated the open meetings provisions of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). We invited the County to submit a written response to the Petition. We received the County's response on December 14, 2017 ("Response Letter") and your reply ("Reply") on December 18, 2017. We have reviewed the Petition, the Response Letter, and the Reply. For the reasons set forth below, it is our determination that the County did not violate FOIA by denying your October 17, 2017 FOIA request.

BACKGROUND

The Sussex County Planning and Zoning Commission (the "Commission") met on October 12, 2017. During the meeting, the Commission held a hearing on the following conditional use application, among others: C/U 2103 Southern Delaware Therapeutic and Recreational Horseback Riding, Inc. ("Application"). Several individuals spoke in support of the Application and no one opposed the Application. At the conclusion of the public hearing, Mr. Keller Hopkins moved that the Commission recommend approval of the Application. He provided several reasons for his recommendation and recited the proposed conditions. The Commission then voted unanimously in favor of forwarding the Application to the Sussex County Council with a recommendation for approval for the reasons stated.

On October 17, 2017, you submitted a FOIA request to the County for "a copy of the motion read by Keller Hopkins for the approval of C/U 2103 . . . on October 12, 2017." That same day, you received an automated message from the Sussex County FOIA Records Center confirming receipt of your request. On November 7, 2017, the County responded to your request as follows:

Sussex County is unable to accommodate your request for a copy of the motion read by Planning & Zoning Commission member Keller Hopkins re: C/U 2103 during the Oct. 12, 2017, commission meeting. The requested document is not considered a "public record" under the Delaware FOIA statute (29 Del. C. § 10002(l)) because it was created for Commissioner Hopkins' convenience only, and was never circulated nor intended to be circulated. Per the Delaware Freedom of Information Act Policy Manual for FOIA Coordinators, page 20 (citations omitted), "As a general rule, a draft document will not be a public record, unless it is circulated to a public body. Personal notes will not constitute public records provided that they are created for the convenience of an individual, and are not circulated or maintained in the public body's files."

The County informed you that the audio recording is available online and provided you a link to the recording. The County also informed you that the approved minutes are also available online.

On November 13, 2017,[2] you replied that your request was not closed and you requested a copy of "the on demand video recording of the entire Planning and zoning [sic] meeting held on on [sic] October 12, 2017." You submitted a second request for the same recording on December 4, 2017. On December 6, 2017, the County responded with a link to the requested video and stated that it considered your request satisfied and closed.

POSITIONS OF THE PARTIES

In your Petition, you allege that the document read by Commissioner Hopkins is a public record. As such, you allege that the County violated FOIA by denying your October 17, 2017 request for a copy thereof.

In its Response Letter, the County maintains that the requested record is not a public record because it is Commissioner Hopkins' personal notes:

The document that Mr. Kramer is requesting is not a motion; it is the handwritten personal notes that were prepared by Commissioner Hopkins in conjunction with Assistant County Attorney, Vince Robertson, and which were further modified by Commissioner Hopkins. Commissioner Hopkins used these notes to make a verbal motion at the Commission Meeting. The preparation of these notes was for his convenience, and his use of the notes was purely discretionary. After the meeting, Planning and Zoning staff picked up the notes, in case the notes were helpful in preparing their minutes (i.e., to clarify a mumbled word, etc.). Any review or use of the Commissioner's personal notes by the staff are purely discretionary, and those personal notes are routinely discarded sometime after the meetings.

In the alternative, the County argues that the requested record is a draft document and is exempted from FOIA because it was not presented to a public body. The County notes that the terms of the verbal motion are reflected in the audio recording and the minutes, which are both publicly available.

In your Reply, you allege that the "Assistant County Attorney Vince Robertson wrote the entire motion (3 pages) that Commissioner Hopkins read." You question why Commissioner Robert Wheatley asked Mr. Robertson if he had time to write the motion if it is not in fact a motion, as argued by the County.

DISCUSSION

As an initial matter, we agree with the Commission's position that personal notes are not a public record as defined by FOIA. The question presented here is whether the record at issue qualifies as a personal note. Under the circumstances, we believe that it does.

The County cites to this Office's prior opinion in Del. Op. Att'y Gen. 02-IB30[3] and Del. Op. Att'y Gen. 02-IB34[4] in support of its position that the requested records are personal notes and are therefore not public records as contemplated by FOIA. In Del. Op. Att'y Gen. 02-IB30, we determined that personal notes prepared by the New Castle County Land Use General Manager and maintained in his personal files were not a public record. We reasoned that personal notes "'are generally created solely for the individual's convenience and to refresh the writer's memory, are maintained in a way indicating a private purpose, are not circulated or intended for distribution within agency channels, are not under agency control, and may be discarded at the writer's sole discretion.'"[5] Similarly, in Del. Op. Att'y Gen. 02-IB34, we determined that a Councilman's personal notes were not a public record, reasoning that they were not made part of the meeting minutes or submitted to the Town Manager to be made a part of the town's official records.[6]

Here, the County has represented that the document at issue is handwritten personal notes that Commissioner Hopkins prepared for his own convenience and subsequently used to make a verbal motion at a meeting. As the meeting was recorded, the exact language of the motion is available verbatim in audio and video form. Under the circumstances, we believe that Commissioner Hopkins retained discretion to discard these personal notes at any time.[7] He did not exercise that discretion here and, as the County acknowledges, a staff member collected them following the meeting. While we caution against such a practice,[8] and our analysis might have been different if Commissioner Hopkins specifically provided the notes to the staff member for a particular purpose,[9] we are not persuaded that the collecting of the notes by the staff member for the sole purpose of assisting that staff member in performing the ministerial act of preparing accurate minutes transformed an otherwise non-public document into a public record. As such, it is our determination that the County did not violate FOIA by denying your request.[10]

CONCLUSION

Based on the foregoing, it is our determination that the County did not violate FOIA as alleged.

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

Stacey X. Stewart

Deputy Attorney General

on behalf of Aaron R. Goldstein, State Solicitor

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

[1] We received your initial correspondence on December 8, 2017. On December 11, 2017, we requested and received the correspondence referenced therein. As that supplemental correspondence was critical to our evaluation of your FOIA allegation, we deem your Petition received on December 11, 2017.

[2] In your Petition, you stated that you sent an email request for the video "immediately" after the County's November 7, 2017 denial of your initial request. You did not include a copy of that email request with your Petition. However, the date of your initial request to the County for a copy of the video recording is not relevant to this determination, which is limited to the question of whether the County violated FOIA by denying your request for a copy of the motion read by Commissioner Hopkins at the October 12, 2017 Commission meeting.

[3] 2002 WL 31867904 (Dec. 2, 2002).

[4] 2002 WL 34158593 (Dec. 21, 2002).

[5] 2002 WL 31867904, at *2 (Dec. 2, 2002) (quoting Yacobellis v. City of Bellingham, 780 P.2d 272, 275 (Wash. App. 1989) (emphasis added).

[6] 2002 WL 34158593, at *4-5.

[7] See Del. Op. Att'y Gen. 02-IB30, 2002 WL 31867904, at *2.

[8] We note the possibility of error if a public body relies on personal notes in preparing minutes, rather than what was actually said at a public meeting.

[9] For example, we have previously implied that personal notes might qualify as a public record if submitted to the Town Manager to be made part of the town's official records. See Del. Op. Att'y Gen. 02-IB34, 2002 WL 34158593, at *5.

[10] Having made this determination, we need not consider the County's alternative argument that the records are exempted from FOIA as draft documents.