Does Delaware's open meetings law apply to the University of Delaware Board of Trustees' Executive Committee?

Official title

06-IB25: RE Freedom of Information Act Against University of Delaware

Plain-English summary

A newspaper reporter complained that the Executive Committee of the University of Delaware's Board of Trustees violated Delaware's open meetings law by privately voting on November 29, 2006 to elect Dr. Patrick Harker as the university's new president. The AG found no violation, relying on a quirk in how FOIA treats the University of Delaware: unlike most public bodies, where a committee of a covered body is itself covered, FOIA's definition carves the University out of the open meeting law entirely except for meetings of the "full" Board of Trustees. Because the Executive Committee is not the full Board, it fell outside FOIA regardless of what it voted on. The AG noted the full Board later met in public on December 11, 2006 and ratified Harker's election with proper notice, and commended the University for setting up an internal committee to review its practices and consider going beyond what FOIA legally requires.

Currency note

This opinion was issued in 2006. 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 Delaware's open meetings law require the University of Delaware's Board of Trustees to meet in public?
A: According to this opinion, yes, but only when the full Board meets. FOIA's definition of "public body" specifically limits coverage of the University to meetings of the full Board of Trustees.

Q: Can a committee of the University of Delaware Board of Trustees meet privately and still comply with FOIA?
A: Yes, according to this opinion. Unlike committees of most other public bodies, a committee of the University's Board of Trustees, including its Executive Committee, is not itself a "public body" under FOIA's University-specific carve-out.

Q: Did the University still need to hold a public vote on the new president at some point?
A: The opinion notes that the full Board of Trustees met in public with notice on December 11, 2006 and voted on the matter, though the opinion's holding is that the earlier private Executive Committee vote did not itself violate FOIA.

Background and statutory framework

The complaint concerned a November 29, 2006 private meeting of the University of Delaware Board of Trustees' Executive Committee, which voted to elect Dr. Patrick Harker as University President. Applying the general open-meeting requirement of 29 Del. C. § 10004(a), the general "public body" definition at § 10002(c) which normally sweeps in committees under Section 10002(a), and the University of Delaware-specific carve-out at § 10002(d) limiting FOIA coverage to meetings of the "full" Board of Trustees as defined in Section 10002(b), and following its own precedent that a University land-transfer decision made only by the Executive Committee fell outside FOIA (Att'y Gen. Op. 00-IB08), the AG found the Executive Committee's presidential election vote likewise fell outside the statute.

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. § 10002(c), general definition of "public body," which ordinarily includes committees of a covered body
• 29 Del. C. § 10002(d), carves the University of Delaware out of FOIA except for meetings of the full Board of Trustees
• Section 10002(a), ordinarily extends "public body" status to committees of a covered body
• Section 10002(b), defines "meeting" for purposes of the full Board of Trustees carve-out

Cases:

• Att'y Gen. Op. 00-IB08 (May 24, 2000), the University's Executive Committee, not the full Board of Trustees, approved a land transfer without violating FOIA because the Committee is not a "public body"

Source

• Landing page: https://attorneygeneral.delaware.gov/2006/12/20/06-ib25-re-freedom-of-information-act-against-university-of-delaware/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 06-ID25 (Del.A.G.), 2006 WL 4130483

Office of the Attorney General

State of Delaware

Opinion No. 06-ID25

December 20, 2006

RE: Freedom of Information Act Complaint Against University of Delaware

*1 Ms. Rachel Kipp

Reporter

The News Journal

P.O. Box 15505

Wilmington, DE 19850

Dear Ms. Kipp:

On December 4,2006, our Office received your letter alleging that the Executive Committee of the Board of Trustees of the University of Delaware (“the Executive Committee”) violated the Freedom of Information Act, 29 Del. C . Ch. 100 (“ FOIA ”), by meeting on November 29, 2006 to approve the election of Dr. Patrick Harker as the new University President without giving notice to the public as required by FOIA . 1

By letter dated December 6,2006, our Office asked the University’s legal counsel to respond to your complaint by December 18, 2006. We received the University’s response by facsimile on

According to the University, “ FOIA does not apply to anything other than ‘a meeting of the full Board [of Trustees]”’ so the “Executive Committee was under no duty under FOIA to open its meeting to [the public].” According to the University, the full Board of Trustees met in public session on December 11, 2006 with notice to the public and “with the full Board’s action in public session on December 11, Dr. Harker’s election to the Presidency is undoubtedly FOIA compliant.”

RELEVANT STATUTES

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session as authorized by statute. 29 Del. C . § 10004(a) .

FOIA defines a “public body” to include any “board, bureau, commission, department, agency, committee, adhoc committee, special committee, temporary committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.” Id . § 10002(c).

FOIA , however, also provides that the definition of a “public body” shall not include “activities of the University of Delaware, … except that the Board of Trustees of the University … shall be [a] ‘public bod[y],’ … and each meeting of the full Board of Trustees … shall be a ‘meeting.”’ 29 Del. C . § 10002(d) .

LEGAL ANALYSIS

In Att’y Gen. Op . 00-IB08 (May 24, 2000), a citizen complained to our Office that the University violated FOIA by meeting to approve a land transfer without notice to the public. We observed that Section 10002(d) of FOIA “exempts the University from the open meeting requirements except for a ‘meeting of the full Board of Trustees.”’ In that case, the record showed that

*2 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(d) 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(b) . There-fore, any meeting of a committee of the full Board of Trustees is exempt from the public meeting re-quirements of FOIA .

In Att’y Gen. Op . 00-IB08, our Office determined “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.”

For the same reasons, we determine that the Executive Committee did not violate the open meeting requirements of FOIA when it met in private on November 29,2006 to approve the election of Dr. Harker as the new University because the Executive Committee is not a “public body” for purposes of FOIA . The open meeting law applies only when the full Board of Trustees meets.

In its December 18, 2006 response, the University states that “Chairman Cosgrove has appointed a committee of the Board and asked that it examine all of the Board’s procedures and make recommendations to ensure FOIA compliance in all its future activities. To the extent that the Board wishes to go beyond legal compliance and consider its policy regarding Executive Committee’s meetings, it will do so with the advice of this committee.” We commend that University for its commitment to compliance with FOIA and for its consideration of public transparency beyond what the statute requires.

CONCLUSION

For the foregoing reasons, we determine that the Executive Committee did not violate the open meeting requirements of FOIA when it met on November 29, 2006 to approve the election of Dr. Harker as the new University President because the Committee is not a “public body” as defined by FOIA .

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Lawrence W. Lewis, Esquire

State Solicitor

Footnotes

1
Because of a potential appearance of a conflict of interest, Attorney General Danberg did not participate in the preparation or review of this opinion.

Del. Op. Atty. Gen. 06-ID25 (Del.A.G.), 2006 WL 4130483