Does the University of Delaware have to follow the same FOIA open-meeting and records rules as a city council?

Official title

00-IB08: Re: Freedom of Information Act Complaint Against University of Delaware

Plain-English summary

A citizen involved with a local group opposing land development complained that the University of Delaware stonewalled questions about transferring university land to a private developer, and that the university improperly approved the transfer behind closed doors. The AG found FOIA treats the University of Delaware differently from most public bodies in two important ways. On records, FOIA only makes UD's documents public to the extent they relate to spending public funds, meaning money from the state or a political subdivision, not federal grants. The citizen had mostly asked UD to answer a list of 27 written questions, but FOIA doesn't obligate any public body to answer questions in that format; it only requires making existing records available to inspect and copy. Once the citizen's letters clarified that a $450,000 state grant (as opposed to a separate $950,000 federal grant) had funded certain infrastructure improvements, the AG found documents about spending that state money were public records UD had to produce, and since UD had already agreed to hand them over, that part of the complaint was resolved. On the open-meeting question, the AG found FOIA exempts the university from open-meeting requirements except for meetings of the "full Board of Trustees." Because the land transfer to the developer was actually approved by the Board's Executive Committee, not the full Board, and a committee isn't itself a "public body" under this narrower university-specific rule, the AG found no FOIA violation in holding that decision behind closed doors.

Currency note

This opinion was issued in 2000. 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: Does FOIA require a public body to answer a citizen's written questions?
A: No, according to this opinion. The AG found FOIA only requires a public body to make existing records available for inspection and copying, not to respond to a list of questions in a question-and-answer format.

Q: Are all of the University of Delaware's records public under FOIA?
A: No. The AG found UD's records are exempt from FOIA except to the extent they relate to the expenditure of public funds, meaning money from the state or a political subdivision, and specifically not federal grant funds.

Q: Do all University of Delaware committees have to meet in public under FOIA?
A: No, according to this opinion. The AG found the open-meeting requirement applies to the university only for meetings of the "full Board of Trustees," meaning a subcommittee or the Executive Committee can meet and even approve major decisions without holding an open meeting.

Q: If a public body approves something in a committee rather than through its full governing board, does that avoid FOIA's open-meeting rules?
A: For the University of Delaware specifically, yes, according to this opinion, because the statute defines the university's open-meeting obligation narrowly around the "full Board of Trustees" rather than the university as a public body generally.

Background and statutory framework

The dispute concerned a citizen's request for information and documents about university land transfers, evaluated under FOIA's university-specific carve-outs. Applying 29 Del. C. Section 10003(a)'s general records-access rule alongside Section 10002(g)'s exemption of University of Delaware records unless they relate to the expenditure of "public funds" as defined in Section 10002(c) (funds from the State or a political subdivision), the AG found records tied to a state infrastructure grant were public records UD had to produce, while records tied to a separate federal grant fell outside Delaware FOIA's reach entirely. Relying on Kenyon v. Garrels for the principle that public records laws generally don't compel an agency to answer a requester's questions, the AG found UD had no obligation to respond to the citizen's list of written questions. On the open-meeting issue, the AG applied Section 10002(g)'s exemption for the university except as to the "full Board of Trustees" as defined in Section 10002(e), together with Section 10002(a)'s general definition of "public body," and found the Executive Committee that approved the land transfer was not itself subject to FOIA's open-meeting requirements.

Citations and references

Statutes:

• 29 Del. C. Section 10003(a), general right to inspect and copy public records
• 29 Del. C. Section 1000(2)(g), exemption of University of Delaware records except those relating to public funds
• 29 Del. C. Section 10002(c), definition of "public funds"
• 29 Del. C. Section 10002(g), narrow open-meeting obligation limited to the full Board of Trustees
• 29 Del. C. Section 10002(a), general definition of "public body"
• 29 Del. C. Section 10002(e), definition of "meeting"

Cases:

• Kenyon v. Garrels, 540 N.E.2d 595, 597 (Ill. App. Ct. 1989), on public records laws not compelling an agency to answer a requester's questions

Source

• Landing page: https://attorneygeneral.delaware.gov/2000/05/24/00-ib08-re-freedom-of-information-act-complaint-against-university-of-delaware/

Original opinion text

Del. Op. Atty. Gen. 00-IB08 (Del.A.G.), 2000 WL 1092967

Office of the Attorney General

State of Delaware

Opinion No. 00-IB08

May 24, 2000

Re: Freedom of Information Act Complaint Against University of Delaware

*1 Mr. Gerald A. Lechliter

44 Harborview Road

Lewes, DE 19958

Dear Mr. Lechliter:

By letter dated February 14, 2000 (received by this Office on February 17, 2000), you alleged that the University of Delaware (“the University”) had violated with Delaware Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), by denying your request for access to public records. By letter dated February 15, 2000, you further alleged that the University violated FOIA by meeting in executive session to approve a land transfer without notice to the public.

By letter dated February 28, 2000, we asked the University to respond to your complaints within ten days. The University asked for an extension of time until March 15, 2000, which we granted. We received the University’s response on March 20, 2000 and sent you a copy, to which you responded by letter dated March 22, 2000. We then asked the University for supplemental information, which we received on April 7, 2000.

By letter dated January 24, 2000 to the President of the University, you expressed concern about the transfer of University property to Beebe Medical Center in 1997 (72.23 acres) and the proposed transfer of almost 100 acres to New Road LLC, a private developer. You stated that a local citizens group with which you are involved, Citizens Against Town Sprawl (CATS), “has attempted to ascertain certain facts, such as purchase/selling prices and contractual provisions, in the history of the research park, and has been met by a wall of official silence from both Beebe and UD.”

By letter dated February 1, 2000, you asked the University to answer a list of 27 questions before February 23, 2000, “the date for public discussion of rezoning parcels of UD land for New Road Limited Liability Corporation to develop into an age restricted residential community.”

By letter dated February 14, 2000 you made another request to add four additional questions to the list of questions enclosed with your letter of February 1, 2000.

In addition to the foregoing exchange of letters, there were several informal telephone conferences between representatives of the Department of Justice with you and also between this office and William Manning, Esquire, attorney for the University.

In its response to your complaint, the University takes the position that FOIA does not require a public body to provide information to a citizen in a question-and-answer format, but only to make public records available for inspection and copying. To the extent you have requested actual documents, the University contends that you are only entitled to records relating to the expenditure of state, but not federal, funds. According to the University, “the parcels of land in question were not acquired with state funds. The only public funds expended on these parcels were those dollars transferred to the University from the State as an economic development grant and used to pay for various infrastructure improvements.” The University has verbally agreed to provide you with “copies of the agreements with the site contractors employed to perform these improvements.”

*2 As for your allegation that the University violated the open meeting requirements of FOIA, according to the University, the full Board of Trustees never met to discuss the proposed land transfer to New Road LLC. Rather, the Executive Committee of the Board met to consider and approve that transaction.

A. Public Records

As a general rule, FOIA requires that “[a]ll public records shall be open to inspection and copying by citizens of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C. Section 10003(a) . FOIA exempts from disclosure, however, records in the custody of the University of Delaware unless they “relat[e] to the expenditure of public funds.” Id. Section 1000(2)(g). FOIA defines “public funds” as “those funds derived from the State or any political subdivision of the State.” Id. Section 10002(c).

We note that your letters of January 24, February 1, and February 14, 2000 did not make a request to review specific documents. Rather, you asked for information, by talking with University officials or through a list of questions, regarding the land transfers. Like the public records laws in other states, Delaware’s FOIA “does not compel the agency to provide answers to questions posed by the inquirer.” Kenyon v. Garrels , Ill. App., 540 N.E.2d 595, 597 (1989). A public body has discretion to provide information to citizens in other formats, but that is a policy decision. The law only requires that public records be made available for inspection and copying.

According to your letter of March 22, 2000, the University received a federal grant of $950,000 from the Economic Development Administration to help fund the infrastructure for the Marine Research Park in Lewes. The University also received a “$450,000.00 state grant for the same purpose.” Since we have no enforcement powers over documents governed by the federal FOIA, we cannot address the request insofar as it seeks documents relating to the federal grant. With respect to the University, the requirements of FOIA are not triggered by the receipt and expenditure of federal funds. As for state funds, according to the University they were used exclusively for “infrastructure improvements.” Any documents relating to the spending of state funds for those infrastructure improvements are “public records” under FOIA, and the University must make them available for inspection and copying. Because the University has offered to do so upon its receipt of this opinion, we consider that part of your FOIA complaint resolved.

B. Open Meeting

FOIA exempts the University from the open meeting requirements except for a “meeting of the full Board of Trustees.” 29 Del. C. Section 10002 (g) . According to the University, the full Board of Trustees did not meet to discuss or consider or approve the transfer of University land to New Road LLC, but rather that decision was made by the Executive Committee of the Board. For most public bodies, the open meeting law also covers any “committee” of the public body. See Section 10002(a) . While Section 10002(g) states that the Board of Trustees is a public body, it also states that only meetings of the “ full Board of Trustees” (emphasis added) shall be a “meeting” as that term is defined in Section 10002(e) . Therefore, any meeting of a subcommittee or ad hoc committee of the full Board of Trustees is exempt from the public meeting requirements of FOIA.

*3 For the foregoing reasons, we conclude that the University may have violated the public records requirements of FOIA by not making available documents relating to the expenditure of state funds for the Marine Research Park to you. Because the University has offered to make those documents available for your inspection and copying, the University has remediated any violation. In complying with FOIA, the University is neither required to answer particular questions you have posed nor is it required to meet with you to discuss any matters raised by your request. We conclude that the University did not violate the open meeting requirements of FOIA because the decision to approve the land transfer to New Road LLC was made, not by the full Board of Trustees, but rather by the Executive Committee of the Board. Because the Executive Committee is not a “public body” for purposes of FOIA, the Committee was not required to hold its meeting in public.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 00-IB08 (Del.A.G.), 2000 WL 1092967

End of Document
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