Does a group of council members meeting informally with an outside organization need to be formally named a 'committee' to count as a public body under Delaware's open-meetings law?

Official title

96-IB02A: FOIA Complaint

Plain-English summary

Newark's city attorney asked the Attorney General to reconsider, modify, or withdraw its January 1996 opinion (96-IB02) that found the city council's three staggered small-group meetings with University of Delaware officials violated FOIA, especially in light of a later, more forgiving ruling involving Sussex County Council members who took an informational industry tour (96-IB26). The city argued the two situations should be treated the same way.

The Attorney General disagreed and left the Newark ruling untouched. It distinguished the Sussex County tour, which was a one-time informational visit that anyone could join voluntarily, from the Newark meetings, which were a repeated series of working sessions covering virtually identical topics with the same University representatives, closer to a real committee's ongoing business than a single outing. The opinion reaffirmed that FOIA does not require an ad hoc or informal committee to be specifically designated or appointed before it counts as a public body; what matters is whether a quorum-equivalent group is discussing or acting on public business, however informally arranged. At the same time, the AG acknowledged Newark's broader worry about routine, harmless interactions, like a council member attending a civic club meeting, a campaign debate, or speaking to a neighborhood group, and offered non-binding guidance that such contacts generally fall outside FOIA as long as they don't involve a quorum of the council or a committee discussing public business together.

Currency note

This opinion was issued in 1996. 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: Why did the Attorney General treat Newark's council-University meetings differently from Sussex County Council's industry tour?
A: The opinion distinguished a one-time, voluntary informational visit (the Sussex County tour) from a repeated series of working sessions on the same topics with the same outside party (the Newark meetings), finding the latter functioned like an ongoing committee's business rather than a single outing.

Q: Does an informal group of officials have to be formally named a "committee" before FOIA applies to it?
A: No. The opinion reaffirmed that FOIA does not require ad hoc or informal committees to be specifically designated or appointed; what matters is whether the group functions as a quorum-equivalent body discussing public business.

Q: Does attending a neighborhood meeting or civic club event as an elected official risk a FOIA violation?
A: Generally not, according to this opinion's advisory guidance, so long as the gathering doesn't involve a quorum of the council or a designated sub-group discussing public business together; the AG stressed these examples were illustrative, not an exhaustive or binding list.

Background and statutory framework

Newark's counsel sought reconsideration of Attorney General Opinion 96-IB02 in light of the Attorney General's July 25, 1996 opinion on the Sussex County Council's industry tour (96-IB26), arguing the two situations should reach the same result. The AG applied 29 Del. C. Section 10001's definition and policy framework for "public body," reasoning that the General Assembly's intent in FOIA and its amendments was to prevent artificial rationales from being used to sidestep the Act's requirements, and that the same public business discussed across a series of near-identical meetings with the same outside party made the Newark gatherings functionally a committee's ongoing work, unlike the single Sussex County tour. The opinion offered non-binding, advisory guidance distinguishing casual civic or campaign-related contacts by individual officials from quorum-level gatherings of a committee or sub-part of a council discussing public business, while emphasizing that FOIA's exceptions must be narrowly construed and any doubt resolved in favor of public access.

Citations and references

Statutes:

• 29 Del. C. Section 10001, definition and policy framework for "public body" applied to distinguish ad hoc committees from casual individual contacts

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/10/17/96-ib02a-foia-complaint/

Original opinion text

October 17, 1996

Civil Division-New Castle County

Roger A. Aiken, Esq.

P. O. Box 390

Newark, DE 19715-0390

Re: FOIA Complaint

Dear Mr. Aiken:

This letter responds to yours of July 29, 1996 requesting that the Office of the Attorney General review and either modify or withdraw the opinion dated January 2, 1996 that found a series of meetings between the University and members of the City Council violated the Freedom of Information Act (“FOIA” or “Act”). We have reviewed the Newark opinion in light of the opinion we rendered in a matter involving Sussex County, Delaware on July 25, 1996, a copy of which is enclosed. Even in light of the opinion relating to Sussex County, our review of the facts and circumstances surrounding the Newark complaint lead us to conclude that no clarification of the January 2, 1996 opinion is required nor should the opinion be modified or withdrawn.

We believe the legislative intent is clear and that the General Assembly intended, by the enactment of FOIA and its subsequent amendments, to assure that no artificial rationales were employed to circumvent the specific requirements imposed on public bodies by FOIA. By specifically outlawing informal or ad hoc types of meetings where a quorum or more of the public body is in attendance (even if that occurs in a series of meetings), the General Assembly clearly intended that all public business that was to be discussed or acted upon be done so in a public manner as set forth in the Act. Irrespective of how one characterizes the conclusions reached in the January 2nd opinion, we are satisfied that, in the context of FOIA, it was proper to conclude that the scheduling of those meetings and the discussions which occurred thereat constituted public business and that the meetings were an artifice designed to avoid the FOIA requirements that public business be discussed in a public forum. Indeed, as you noted in your letter of July 25th, “[m]atters of mutual concern between the school and the City were discussed.” Unlike the Sussex County case, the clear import of your letter is that the discourse between the University and the City was not in the form of an informational presentation to Council subsequent to a public announcement of the time, date place and circumstance of the meeting, but that the meetings between the Council members and the University were more like working sessions of a public body. Clearly, the issues covered were virtually identical in all three meetings. It is our belief that FOIA does not require that, in circumstances similar to what occurred in Newark, ad hoc or informal committees have to be specifically designated or appointed in order to be such under the FOIA definition.

That being said, your concern about neighborhood meetings or invitations to members of a public body to speak in the community is well taken. It should first be assumed that no matter how many examples either of us might be able to describe, it would be virtually impossible to consider all possible types of circumstances under which a FOIA complaint might or might not be appropriate. Therefore any examples used or general statements made should not be considered to be exhaustive and any suggestions are merely advisory and do not bind the Department of Justice with respect to any future complaint.

The analysis must first start with the definition of public body set forth in Section 10001. That definition speaks for itself and is only crucial to your inquiry in the context of whether and under what circumstances a sub-part of the Council is established. The second crucial issue is whether the persons gathering constitute a quorum of the council or sub-part thereof and whether public business is being discussed. Meetings between one or more council members and citizens for purposes of local civic or service club meetings, election campaigns, debates, etc.(provided the public official(s) did not constitute a quorum of the Council or any committee thereof) would probably not fall within FOIA. On the other hand, two or more council members meeting with a specific interest group to discuss public business could very well fall within the Act, especially if the persons happen to be members of the same sub-committee or designated to investigate a particular issue. In that type of situation, one has to take care to evaluate the type of meeting being held and the definition of an ad hoc committee.

The Department of Justice has concluded that the General Assembly intended the Act to be liberally construed. Case decisions have confirmed the construct that the exceptions to the Act must be very narrowly drawn and that any questionable circumstance must be resolved in favor of the public’s right to know and have access to the meetings and records of public bodies. Accordingly, we find no basis upon which to modify our opinion of January 2nd. I will be happy to meet with you personally to discuss any legal issues you believe may be unresolved by the opinion and this letter.

Very truly yours,

Michael J. Rich

State Solicitor

cc: Hon. M. Jane Brady

Keith R. Brady, Chief Deputy Attorney General

Malcolm S. Cobin, Assistant State Solicitor

W. Michael Tupman, Deputy Attorney General