When a Delaware mayor asks two commissioners and the town manager during a public meeting to look into a FOIA complaint, does that trigger a new round of open-meeting requirements?

Official title

19-IB17 3/25/2019 FOIA Opinion Letter to Mr. Jeffrey Smith re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

Jeffrey Smith, on behalf of Dewey Citizens for Accountability, alleged that at the February 9, 2019 Town Council meeting, the Mayor formed an unannounced "working group" when he asked two Commissioners and the Town Manager to "look into that FOIA" relating to a Seasons Pizza matter. The Petition argued that the agenda failed to mention the request, that two Commissioners reporting back to the Mayor would create a quorum, and that any subsequent discussion in the February 22 executive session would have been improper.

The AG grouped the allegations into three issues and found no violation on any of them:

1. No FOIA-violating gathering occurred. Regardless of whether the three individuals constituted a public body, there was no evidence in the record that the group had met or was about to meet. The AG declined to find a violation on that record.
2. No agenda item required. An agenda must provide a general statement of the "major issues expected to be discussed." The AG concluded, as it had in Opinion 17-IB48, that a preliminary request for research or review of a matter of public business is not a major issue that must be listed on the agenda.
3. The executive session did not cover this. The Town, through its counsel, confirmed that the FOIA matter was not the subject of the February 22, 2019 executive session, and the AG found no violation on that point.

Currency note

This opinion was issued in 2019. 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

Did the AG decide whether the two commissioners and Town Manager formed a public body?

No. The AG expressly declined to resolve whether the individuals constituted a public body, because there was no evidence in the record that they had met or were about to meet. Without a meeting (or evidence of one about to occur), there was no FOIA violation to find on that record.

What does the agenda actually have to disclose?

The AG described the agenda standard as a "general statement of the major issues expected to be discussed at a public meeting," intended to alert those with an "intense interest" in a subject that it will be considered. The AG found that neither party alleged the Council discussed the substance of the FOIA matter; the Mayor made a brief announcement requesting that individuals work on the task. On that record, the request was not a major issue requiring an agenda item.

What weight did the attorney's representation about the executive session carry?

The Town's counsel confirmed that the FOIA matter was not discussed in the February 22 executive session and submitted the executive session minutes to the AG in camera. The AG accepted that submission and found no violation on the executive-session claim.

Background and statutory framework

Two threads run through this opinion:

• No meeting, no violation. It is a violation of FOIA for a public body to conduct its meetings in private unless expressly permitted by statute. But the AG declined to find a violation where there was no evidence the individuals had met or were about to meet, regardless of whether they constituted a public body.
• Agenda specificity. The agenda need only provide a general statement of the "major issues expected to be discussed." The AG concluded, consistent with Opinion 17-IB48, that a preliminary request for research or review of a matter of public business is not such a major issue.

Citations

• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• Del. Op. Att'y Gen. 17-IB48 (Sept. 27, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/04/04/19-ib17-3-25-2019-foia-opinion-letter-to-mr-jeffrey-smith-re-foia-complaint-concerning-the-town-of-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB17.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 19-IB17
March 25, 2019
VIA EMAIL
Mr. Jeffrey C. Smith
Dewey Citizens for Accountability
[email protected]
RE:

FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. Smith:
We write in response to your correspondence filed on behalf of Dewey Citizens for
Accountability alleging that the Town of Dewey Beach ("Town") violated the open meeting
requirements of 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. For the reasons set forth
below, we find that the Town has not violated FOIA as alleged.

BACKGROUND

The Petition alleged numerous open meetings violations arising from the Mayor's request
at a February 9, 2019 Town Council meeting and from a February 22, 2019 executive session. At
the February 9, 2019 meeting, the Mayor stated that "the Cape Gazette wrote an article, Mr. Smith
sent a FOIA, Mr. Bauer asked for more information about what happened with Seasons Pizza" and
then requested that two Commissioners and the Town Manager "look into that FOIA." You allege
this announcement constituted the formation of a "working group" to perform an investigation
subject to open meeting requirements. You argue that the formation of the working group was
not on the meeting agenda nor was any other notice to the public that the topic would be addressed;
that having the working group report back to the Mayor would constitute a quorum of Town
Council members; that there had been no meetings scheduled or announced at the time this Petition
was filed and that the investigation would be completed out of public view; and that if such an
investigation was discussed during the executive session of the February 22, 2019 Town Council
meeting, this matter would be an improper purpose for executive session.

The Town Solicitor sent a Response, asserting the Town has not violated FOIA. The Town
argues that the Mayor's request that an issue be "looked into" is a routine occurrence in public
meetings. The Town further argues that an agenda must only state the major issues expected to be
discussed and "no discussion, deliberation, motion, vote, authorized expenditure, or the like" took
place with regard to this matter. The Town asserts that the request could be made outside of a
public meeting without violating FOIA and did not constitute a formal invocation of the Town's
authority to conduct formal investigations under its Charter. With regard to those allegations of
what conduct could occur, the Town argues that speculation is not sufficient to support a finding
of a violation. The Town asserts there was no evidence that the two Commissioners had reported
to or met with the Mayor regarding this matter (or would do so), and thus, there is no evidence that
a quorum of the Town Council met or took action out of the public view. The Town further denies
that the executive session had been improper, and by separate submission to this Office, the
Town's counsel verified that this FOIA matter was not the subject of the February 22, 2019
executive session and submitted a copy of its executive session minutes in camera.

DISCUSSION

Your allegations comprise three overall issues: 1) whether the individuals asked to "look
into that FOIA" ("FOIA Investigation") violated open meeting requirements; 2) whether the
agenda provided sufficient notice of the Mayor's announcement with respect to this request; and
3) whether the Town Council improperly discussed the FOIA matter in executive session. We
address each issue in turn.

Did the Individuals Involved in the FOIA Investigation Violate Open Meeting Requirements?

During the Announcements portion of the agenda, the Mayor asked two Commissioners
along with the Town Manager "to look into that FOIA." It is a violation of FOIA for a public
body to conduct its meetings in private unless expressly permitted by the FOIA statute, but here,
regardless of whether the individuals constitute a public body under FOIA, there is no evidence
submitted in the record that these individuals have met or are about to meet. Therefore, we do
not have evidence to conclude that the individuals have violated or are about to violate FOIA on
the basis of this record.

Is the February 9, 2019 Meeting Agenda Required to Include Notice of the Mayor's
Announcement of this FOIA Investigation?

An agenda must provide for a "general statement of the major issues expected to be
discussed at a public meeting." The agenda is intended to alert those with an "intense interest" in
a subject that this subject will be considered. Neither party alleges that the Town Council
considered or discussed the substance of the FOIA Investigation; the Mayor made a brief
announcement requesting individuals to work on this task. In addition, similar to this Office's
decision in Attorney General Opinion No. 17-IB48, we believe that a preliminary request for
research or review of a matter of public business is not a "major issue to be discussed" that must
be included on the meeting agenda. As such, we find no violation.

Was the FOIA Investigation Improperly Discussed at the February 22, 2019 Executive Session?

You allege that the Town Council may have improperly discussed the FOIA Investigation
in executive session at the February 22, 2019 meeting. The Town, through its counsel, has
confirmed that this matter was not the subject of the executive session on February 22, 2019. As
such, we find no violation in this regard.

CONCLUSION

Based on the foregoing, it is our determination that the Town has not violated FOIA as
alleged.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Allison E. Reardon
Allison E. Reardon
State Solicitor
cc:

Fred Townsend, Esq., Town Solicitor (via email)