Does a town building committee have to hold a public meeting before approving a building permit?

Currency note

This opinion was issued in 2018. 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.

Plain-English summary

Three Fenwick Island Town Councilmembers filed a FOIA petition alleging two separate violations connected to a single building permit application. First, they said five individuals (the Building Official, Town Solicitor, Mayor, Building Committee Chair, and Town Manager) discussed the permit without giving the public a chance to observe. Second, they said the Building Committee itself approved the permit without ever holding a public meeting.

The Attorney General's office split the difference. It found the group of five individuals wasn't a "public body" under FOIA at all, since FOIA's open-meetings requirement applies to bodies, not to informal conversations among individual officials, so no violation occurred there. But it found the Building Committee itself was a public body, and that it violated FOIA by approving the building permit application without ever holding a public meeting to vote on it. As a remedy, the opinion recommended the Building Committee hold a public meeting to formally vote on the permit application.

Background and analysis (as of 2018)

The opinion, issued as a short-form letter with a promised fuller explanation to follow, distinguished between two different actors connected to the same building permit dispute. FOIA's open-meetings requirements apply specifically to "public bodies," not to any group of individuals who happen to discuss the same matter informally. Because the five individuals identified in the petition (spanning multiple town offices and roles) did not themselves constitute a public body, their private discussion of the permit application did not trigger FOIA's public-meeting requirements.

The Building Committee, by contrast, was found to be a public body in its own right, meaning any formal action it took, including approving a building permit, had to happen at a properly noticed public meeting. Because the Committee approved the permit without holding that meeting, the opinion found a FOIA violation and directed the Committee to hold a public meeting to formally vote on the application as the remedy.

Citations and references

Statutes (as they stood in 2018):

• 29 Del. C. §§ 10001-10007, Delaware's Freedom of Information Act
• 29 Del. C. § 10005(e), the FOIA petition process for determining whether a violation occurred

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/09/06/18-ib40-8-24-2018-foia-opinion-letter-ms-vicki-carmean-ms-julie-lee-mr-roy-williams-re-foia-complaint-concerning-town-fenwick-island/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/09/Attorney-General-Opinion-No.-18-IB40.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630

DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 18-IB40
August 24, 2018
VIA EMAIL
Vicki Carmean, Town Councilmember, Town of Fenwick Island
Julie Lee, Town Councilmember, Town of Fenwick Island

Roy Williams, Town Councilmember, Town of Fenwick Island
c/o [email protected]

RE: FOIA Petition Regarding the Town of Fenwick Island

Dear Councilmembers Carmean, Lee, and Williams:

We write in response to your correspondence received on August 3, 2018 alleging that
certain individuals associated with the Town of Fenwick Island ("Town") violated the Delaware
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.

You made two allegations: 1) a group of five individuals including the Building Official,
Town Solicitor, Mayor, Building Committee Chair, and Town Manager (collectively, "Five
Individuals") violated FOIA by discussing a building permit application without providing an
opportunity for the public to observe those conversations; and 2) the Building Committee
violated FOIA by approving a building permit without holding a public meeting. Because the
Five Individuals are not a public body, we find that they did not violate FOIA as alleged.
However, we determine that the Building Committee is a public body and that the Building
Committee violated FOIA by its failure to conduct a public meeting to approve the building
permit application.

As remediation, we recommend that the Building Committee conduct a public meeting to
formally vote on the building permit application in question.

This opinion will be supplemented to provide a more detailed explanation for our finding.
Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:

Ilona Kirshon
Deputy State Solicitor

cc: Mary Schrider-Fox, Esq. (via email)