Can a Delaware zoning board use its written case decisions as its meeting minutes, and can it charge $4 a page for a hearing transcript?

Official title

05-IB06: RE: F.O.I.A.Complaint Against Rehoboth Beach Board of Adjustment

Plain-English summary

A resident filed three complaints against the Rehoboth Beach Board of Adjustment: it didn't post a complete agenda seven days ahead of a July 26, 2004 meeting, it never kept real minutes of that meeting or an August 23, 2004 meeting, and it charged $4 a page for a transcript of a hearing. The Board, which hears zoning variance appeals, argued that its written case decisions (with findings of fact and conclusions of law) satisfied FOIA's minutes requirement. The AG disagreed on all three points. The agenda for the July meeting listed only two variance requests but the Board also discussed a homeowners' association letter about sign postings that wasn't mentioned, a significant enough topic that it should have been disclosed in advance. The Board's case decisions didn't identify which of its members were present or how each voted, so when only four of five members attended, the public couldn't tell from the decision who voted which way; a written outcome isn't the same as real minutes. On the fee, the AG found that once the Board already has a transcript in its possession, whether it paid for it or a party did, it can only charge the actual cost of copying, not what it paid the court reporter to prepare it, and $4 a page was well above what Delaware courts charged for copies at the time. The AG ordered the Board to prepare and send proper minutes for both meetings within ten days.

Currency note

This opinion was issued in 2005. 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: Can a Delaware zoning board treat its written case decisions as the minutes FOIA requires?
A: No, according to this opinion, unless the decision identifies which members were present and records each member's vote; a decision that only states the outcome of the vote doesn't satisfy FOIA's minutes requirement when not every member attended.

Q: Does a Delaware public body have to list every topic it plans to discuss in its meeting agenda?
A: Yes, in substance, according to this opinion. A significant matter of public business, like a homeowners' association's request about sign postings, has to be disclosed in the agenda even if the meeting's main purpose is something else.

Q: How much can a Delaware public body charge to copy a hearing transcript it already has?
A: According to this opinion, only the actual cost of photocopying, not what the body itself paid a court reporter to prepare the transcript; $4 a page was found unreasonable when courts at the time charged $1 to $1.50 a page for copies.

Background and statutory framework

The complaint concerned July 26 and August 23, 2004 meetings of the Rehoboth Beach Board of Adjustment and a $4-per-page transcript copying charge. Applying the open-meeting requirement of 29 Del. C. §10004(a), the notice and posting requirements at §10004(e)(2) and (e)(4), the minutes requirement at §10004(f), and the reasonable-copying-cost provision at §10003(a), and drawing on its own opinions on agenda specificity (Att'y Gen. Op. 03-IB22, citing Att'y Gen. Op. 97-IB20, and Ianni v. Department of Elections of New Castle County), on minutes sufficiency (Common Cause of Delaware v. Red Clay Consolidated School District, East Coast Resorts, Inc. v. Board of Adjustment of the Town of Bethany Beach), on the Board's non-quasi-judicial administrative functions (Zoning Board of Adjustment of New Castle County v. Dragon Run Terrace, Inc.), and on reasonable copying costs (Att'y Gen. Op. 95-IB08, Department of Health & Rehabilitative Services v. Southpointe Pharmacy), the AG found violations on all three issues and ordered the Board to prepare compliant minutes within ten days.

Citations and references

Statutes:

• 29 Del. C. §10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. §10004(e)(2), regular meetings require at least seven days' public notice including the agenda, dates, times, and places
• 29 Del. C. §10004(e)(4), notice must include conspicuous posting at the public body's principal office
• 29 Del. C. §10004(f), public bodies must maintain minutes recording members present and each vote taken
• 29 Del C. §10003(a), a public body may charge only the reasonable expense of copying public records

Cases:

• Att'y Gen. Op. 03-IB22 (Oct. 6, 2003), quoting Att'y Gen. Op. 97-IB20 (Oct. 20, 1997), an agenda notifies the public of matters to be discussed and voted on
• Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986), a general agenda statement fails FOIA when a known specific important subject is not disclosed
• Common Cause of Delaware v. Red Clay Consolidated School District, C.A. No. 13798, 1995 WL 733401 (Del. Ch., Dec. 5, 1995), minutes need not summarize discussed subjects with specificity but must still meet FOIA's basic content requirements
• East Coast Resorts, Inc. v. Board of Adjustment of the Town of Bethany Beach, C.A. No. 91A-10-002, 1993 WL 258707 (Del. Super., June 17, 1993), minutes properly recording each member's vote were properly filed
• Zoning Board of Adjustment of New Castle County v. Dragon Run Terrace, Inc., 216 A.2d 146, 147 (Del. 1965), a board of adjustment's variance and special exception powers are administrative, not purely quasi-judicial
• Att'y Gen. Op. 95-IB08 (Feb. 6, 1995), a copying cost of 50 cents per page was reasonable a decade earlier
• Department of Health & Rehabilitative Services v. Southpointe Pharmacy, 636 So.2d 1377 (Fla. App. 1994), once filed with an agency, a transcript is a public record regardless of who paid for it, chargeable only at actual copying cost

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/03/09/05-ib06-re-f-o-i-a-complaint-against-rehoboth-beach-board-of-adjustment/
• Original PDF: not linked from landing page

Original opinion text

March 9, 2005

Civil Division-Kent County (739-7641)

05-IB06

Mr. Stan Mills

38 Maryland Avenue

Rehoboth Beach, DE 19971-2129

Re:  Freedom of Information Act Complaint

Against Rehoboth Beach Board of Adjustment

Dear Mr. Mills:

Our Office received your Freedom of Information Act (“FOIA”) complaint on September

24, 2004 alleging that the Rehoboth Beach Board of Adjustment (“Board of Adjustment”or “Board”)

violated FOIA by: (1) failing to post the agenda of a public meeting held on July 26, 2004 seven

days in advance; (2) failing to prepare minutes of public meetings held on July 26 and August 23,

2004; and (3) charging an unreasonable fee ($4.00 per page) for a transcript of any meeting of the

Board of Adjustment. 1

By letter dated September 27, 2004, we asked the Board to respond to your complaint within

ten days. By letter dated October 11, 2004, the Board’s counsel requested a thirty-day

extension of time because of his trial schedule, which we granted. We received the Board’s initial

response on November 1, 2004.

By letter dated November 29, 2004, we asked the Board for additional information and

documents: the notices and agendas for the July 26 and August 23, 2004 meetings, and the date and

time and place they were posted; and copies of any case decisions which the Board heard at the

meeting on August 23, 2004.

By letter dated December 7, 2004, the Board provided us with copies of two case decisions

heard at the meeting on August 23, 2004, but wrote that the Board would not be able to provide us

with the other information we requested “until next week.” When we did not hear anything back

from the Board, we wrote again on February 28, 2005 advising the Board that if we did not receive

the requested information by March 4, 2004, “then our Office will draw the adverse inference that

the meetings were not noticed in compliance with FOIA as alleged in the complaint.” Under cover

of letter dated March 1, 2005 you provided us with the supplemental information we requested.

According to the Board of Adjustment, it meets to hear appeals from decisions by city

officials regarding zoning ordinances (for example, an application for a variance). See 22 Delaware

Code §§324, 326, 327. A court reporter is present at appeal hearings so that a transcript may be

prepared, if necessary, in the event of an appeal to the Superior Court. Id. §§328, 331 (review by

the Superior Court is on the record). The Board does not prepare and maintain “minutes” of its

meetings, as that term is commonly understood. Instead, the Board issues a written decision with

findings of fact and conclusions of law. The Board contends that the written decision satisfies the

minutes requirements of FOIA.

RELEVANT STATUTES

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those closed” as authorized by statute for executive session. 29 Del. C. §10004(a).

“All public bodies shall give public notice of their regular meetings and of their intent to hold

an executive session closed to the public, at least 7 days in advance. The notice shall include the

agenda, if such has been determined at the time, and the dates, times and places of such meetings.”

29 Del. C. §10004(e)(2).

“Public notice required by this subsection shall include, but not be limited to, conspicuous

posting of said notice at the principal office of the public body holding the meeting, or if no such

office exists at the place where meetings of the public body are regularly held, and making a

reasonable number of such notices available.” 29 Del. C. §10004(e)(4).

“Each public body shall maintain minutes of all meetings, including executive sessions,

conducted pursuant to this section, and shall make such minutes available for public inspection and

copying as a public record. Such minutes shall include a record of those members present and a

record, by individual members . . . of each vote taken and action agreed upon.” 29 Del. C.

§10004(f).

“Any reasonable expense involved in copying” of public records under FOIA “shall be levied

as a charge on the citizen requesting such copy.” 29 Del C. §10003(a).

2 You also allege that the Board discussed another matter of public business at the July 26,

2004 meeting — proposed revisions to the Board’s rules and regulations. You may have confused that

topic with the discussion at the Board’s August 23, 2004 meeting of revising the Board’s by-laws. That

matter of public business was listed in the agenda for the August 23, 2004 meeting which was posted

seven days in advance as required by FOIA.

LEGAL AUTHORITIES

A. July 26, 2004 Meeting

You allege that the Board of Adjustment failed to post an agenda for this meeting seven days

in advance as required by FOIA. You allege that the Board circulated an agenda at the start of the

meeting, but then discussed two matters of public business not listed in the agenda: (1) placard

notification program; and (2) proposed revisions to the Board’s rules and procedures.

The documents provided to us by the Board show that on July 2, 2004 the Board posted

notice of a public meeting to be held on July 26, 2004. The notice listed two requests for a variance

as the matters of public business to be discussed. The Board acknowledges that it did not post an

agenda seven days in advance of the July 26, 2004 meeting as required by FOIA, but rather

circulated an agenda at the start of that meeting. The agenda lists — in addition to the two requests

for a variance — under “New Business 1. Discussion of a letter from the Rehoboth Beach

Homeowners’ Association regarding posting of signs.” *2

“‘An agenda serves the important function of notifying the public of the matters which will

be discussed and possibly voted on at a meeting, and so that members of the public can decide

whether to attend the meeting and voice their ideas or concerns.’” Att’y Gen. Op. 03-IB22 (Oct. 6,

2003) (quoting Att’y Gen. Op. 97-IB20 (Oct. 20, 1997)). “While the statute requires only a ‘general

statement’of the subject to be addressed by the public body, when an agency knows that an

important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the

letter of the Freedom of Information Act to state the subject in such broad generalities as to fail to

draw the public’s attention to the fact that that specific important subject will be treated.” Ianni v.

Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen,

C.)

The agenda for the Board’s July 26, 2004 meeting was not posted seven days in advance as

required by FOIA, but rather handed out at the start of the meeting. The notice for the July 26, 2004

meeting was timely posted, but listed only the two requests for a variance for public discussion and

did not mention the letter from the Rehoboth Beach Homeowners’ Association regarding the posting

of signs. We believe that the sign issue was a matter of public business substantial enough to require

disclosure in an agenda published seven days in advance of the meeting.

We determine that the Board violated the public notice requirements of FOIA by failing to

post an agenda for that meeting seven days in advance and listing all of the matters of public

business to be discussed at that meeting.

B. Minutes

FOIA does not require any specific form for the minutes a public body must prepare and

maintain for every meeting. “The Act requires that certain information be included in the minutes,

but neither says that the subjects discussed must be summarized nor attempts to define how specific

such a summary should be.” Common Cause of Delaware v. Red Clay Consolidated School District,

C.A. No. 13798, 1995 WL 733401, at p.4 (Del. Ch., Dec. 5, 1995) (Balick, V.C.). There is no

“clearly implied statutory requirement to summarize the subjects discussed with any degree of

specificity” in the minutes FOIA requires to be prepared and maintained. FOIA only requires the

minutes to include: “a record of those members present and a record, by individual members . . . of

each vote taken and action agreed upon.” 29 Delaware Code §10004(f).

The two case decisions the Board provided to us (both heard at the Board’s August 23, 2004

meeting) do not identify the individual Board members present or how they voted on the action

agreed upon (application for a variance). The decisions state at the end: “By a vote of four in favor

and none against, a motion to deny the Variance was carried”; and “By a vote of four in favor and

none against, the Request for a Variance was GRANTED.”

We determine that these two written decisions do not satisfy the requirements of FOIA for

preparing and maintaining minutes of the Board’s August 23, 2004 meeting. If all of the Board

members had been present and the case decision unanimous, then the public could infer the vote of

each individual Board member even if not named as voting in favor or against. But only four of the

five members of the Board attended the meeting on August 23, 2004, so it is not possible to know

from the written case decision who voted which way. Compare with East Coast Resorts, Inc. v.

Board of Adjustment of the Town of Bethany Beach, C.A. No. 91A-10-002, 1993 WL 258707, at

p.4 (Del. Super., June 17, 1993) (Lee, J.) (the votes of each individual board member were properly

recorded in the minutes of the meeting and “the minutes were properly filed”). We determine that

the Board of Adjustment violated FOIA by not preparing and maintaining minutes of its public

meeting on August 23, 2004 with the information required by FOIA.

We are also concerned that the Board’s case decisions also may not reflect matters of public

business that were discussed before or after a hearing on a zoning matter. For example, at the July

26, 2004 meeting the Board discussed at least one administrative matter: the letter from the

Rehoboth Beach Homeowners’ Association regarding the posting of signs. That matter of public

3 Dragon Run involved a county board of adjustment governed by Chapter 26 of Title 9 of

the Delaware Code. The Supreme Court observed, however, that a municipal board of adjustment “is to

all intents and purposes a counterpart in the City of the County Board of Adjustment.” 216 A.2d at 147.

business does not appear to be reflected in the two case decisions (requests for a variance) heard at

the Board’s July 26, 2004 meeting.

The Board contends that it acts only in a “quasi-judicial” capacity and therefore its case

decisions reflect all of its public business. A board of adjustment, however, not only “has the quasijudicial

duty of hearing appeals urging error in decisions made by zoning officials” but also has “the

power to grant special exceptions and variances. We do not understand this latter function to be the

exercise of a quasi-judicial function. The exercise of these powers is the discharge of an

administrative or delegated legislative function.” Zoning Board of Adjustment of New Castle

County v. Dragon Run Terrace, Inc., 216 A.2d 146, 147 (Del. 1965). *3

The Board of Adjustment has not provided us with any writing to meet its burden of proof

that it prepared minutes of its July 26, 2004 meeting in the form and content required by FOIA. We

determine that the Board violated the open meeting requirements of FOIA by failing to prepare and

maintain minutes of that meeting.

C. Copying Costs

FOIA allows a public body to charge a “reasonable expense involved in the copying” of

public records. We have earlier determined that a copying cost of 50 cents per page was reasonable,

see Att’y Gen. Op. 95-IB08 (Feb. 6, 1995), but that was ten years ago. A better benchmark is what

the courts in Delaware now charge (Superior Court, $1.50 per page; Family Court, $1.00 per page).

The Board has not responded to your allegation that charging $4.00 per page for a transcript

of a hearing is unreasonable and therefore the Board has not met its burden of proof that the charge

is reasonable. We understand that not every hearing is transcribed for budget reasons, and that the

usual catalyst for the court reporter to prepare a transcript is the filing of an appeal to the Superior

Court. Until such time as the Board asks the court reporter or otherwise obtains a copy of a

transcript, the data compiled by the court reporter at the hearing is not a “public record” in the

custody of a public body for purposes of FOIA. Under those circumstances, if a citizen wants a

transcript of a hearing then he or she will have to contract directly with the court reporter.

If, on the other hand, the Board has already purchased a transcript from the court reporter,

or otherwise comes into possession of a copy before a citizen makes a FOIA request for it, then

FOIA permits the public body to charge only the reasonable costs of photocopying the transcript,

not the same charge the public body may have paid to the court reporter. “Once the transcript of an

administrative hearing conducted by or on behalf of an agency has been filed with the agency, the

transcript becomes a public record without regard to who ordered the transcription or bore its

expense.” Department of Health & Rehabilitative Services v. Southpointe Pharmacy, 636 So.2d

1377 (Fla. App. 1994). Under FOIA, a public body cannot charge the public “more than the actual

cost of duplicating public records, including transcripts.” Id.

To the extent that the Board of Adjustment is charging citizens $4.00 per page to copy a

transcript already prepared and in the custody, possession or control of the Board, we find that

amount unreasonable and in violation of FOIA.

Conclusion

For the foregoing reasons, we determine that the Board of Adjustment violated the open

meeting requirements of FOIA by: (1) failing to post a timely agenda for a public meeting on July

26, 2004; and (2) failing to prepare and maintain minutes of public meetings on July 26 and August

23, 2004. We also determine it is unreasonable under FOIA for the Board to charge $4.00 per page

to copy a transcript of a Board case decision which has already been prepared by a court reporter

at the request of the Board or one of the parties to the case and which is already in the custody,

possession or control of the Board.

As remediation, we direct the Board of Adjustment to prepare and send to us within ten days

of the date of this letter minutes for the July 26 and August 23, 2004 meetings which comply with

FOIA. We also ask the Board’s counsel to notify us in writing when remediation has been completed

and enclose copies of the minutes of those two meetings.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Malcolm S. Cobin, Esquire

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Craig A. Karsnitz, Esquire

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 You also allege that the Board of Adjustment has violated the record maintenance and

retention provisions of Chapter 3 of Title 22 of the Delaware Code, and the State public archives law,

Chapter 5 of Title 29 of the Delaware Code. Those issues are not within our jurisdiction under FOIA.

*2 You also allege that the Board discussed another matter of public business at the July 26,

2004 meeting — proposed revisions to the Board’s rules and regulations. You may have confused that

topic with the discussion at the Board’s August 23, 2004 meeting of revising the Board’s by-laws. That

matter of public business was listed in the agenda for the August 23, 2004 meeting which was posted

seven days in advance as required by FOIA.

*3 Dragon Run involved a county board of adjustment governed by Chapter 26 of Title 9 of

the Delaware Code. The Supreme Court observed, however, that a municipal board of adjustment “is to

all intents and purposes a counterpart in the City of the County Board of Adjustment.” 216 A.2d at 147.