Can a Delaware town split a public comment period across two meetings and still meet open-meeting rules?

Official title

22-IB14 04/20/2022 FOIA Opinion Letter to William Weistling, Jr. re: FOIA Complaint Concerning the Town of Fenwick Island

Plain-English summary

The Town of Fenwick Island held a March 4, 2022 public hearing on four ordinances, including one on low-speed vehicles. Public comment ran long, the comment period was suspended, and the regular Council meeting took over. During the regular meeting the Council reopened the comment period, took further verbal comments, voted on the ordinance, and then held another comment slot called "Public Participation" later in the meeting. William Weistling alleged that this split process kept some speakers from being heard before the vote, especially one citizen who had collected 155 signatures and was not called until after the vote. He asked the AG to require the Town to read the written comments aloud at a future meeting.

The AG could not find a violation. The Town submitted approved minutes from both the hearing and the regular meeting showing that every speaker who wanted a verbal turn was given one before the vote, and the citizen with the petition spoke during the meeting's reopened comment period prior to the vote. FOIA does not obligate a public body to hold a public comment period at all, and when it does, FOIA does not require written comments to be read aloud. With the factual record favoring the Town, the AG declined to find a violation but recommended the Town clearly tell attendees how to give verbal comments when comment periods must be split.

What this means for you

If you are a Delaware municipal council

The opinion holds that a public comment period conducted in a "bifurcated format," split across a hearing and the next regular meeting, did not violate FOIA where the record showed every speaker who wanted a verbal turn got one before the vote. It recommends that the Council "clearly inform attendees at future meetings how to offer verbal comments during the public comment period, especially when that comment period must be bifurcated."

If you are a citizen who attended a hearing

The opinion holds that submitting written comments did not foreclose giving verbal comments: the record showed that "all individuals who had not had an opportunity to present their views at the hearing were given time to express their views during the Town Council meeting prior to any vote being taken." The AG also noted the Town's position that if some members of the public "chose to leave the Meeting, or otherwise chose not to make verbal comment, that was their choice, not the Town's."

If you are an attorney advising a public body

The opinion turns on the documentary record. The Town submitted approved minutes for both the hearing and the meeting, and the AG found those minutes contradicted the petitioner's account, so "the factual record submitted by the parties in this case does not support the alleged violation." The opinion cites Judicial Watch for the point that a sworn affidavit may be required in some circumstances, but here the approved minutes carried the Town's burden.

Common questions

Does FOIA require a public comment period?

No. The opinion states a public body "is not required to hold a public comment period during a meeting, but if it chooses to do so, it must conduct that public comment period in accordance with FOIA, the First Amendment, and all other applicable laws," citing Reeder v. Del. Dep't of Ins. Reeder adds that courts apply other bodies of law "to make sure that public bodies discharge their legal responsibilities in a non-arbitrary and public-regarding manner."

Does the Town have to read aloud the written comments I submitted?

No. FOIA contains no requirement that written submissions be read into the record. The Town flagged a policy concern: requiring oral reading of every written submission would discourage bodies from accepting written comments at all and would slow meetings significantly.

What if I left after the hearing because I thought comments closed?

The opinion acknowledges the dispute "perhaps arose out of a misunderstanding regarding the acceptance of verbal public comments," which is why it recommends that the Council "clearly inform attendees at future meetings how to offer verbal comments during the public comment period, especially when that comment period must be bifurcated."

What about the citizen who had gathered 155 signatures?

The petition alleged that this citizen was not permitted to speak until the "Public Participation" portion of the regular meeting, after the vote. The opinion did not resolve that specific allegation by name. Instead, it relied on the approved minutes, which stated that "all individuals who had not had an opportunity to present their views at the hearing were given time" before the vote, and which showed that "one resident, who submitted written comments, also gave verbal comments at the public hearing." On that record, the AG found the alleged violation unsupported.

Background and statutory framework

29 Del. C. § 10005(c) puts the burden on the public body to demonstrate compliance. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), can require an affidavit, but where the documentary record (here, approved minutes for both the hearing and the meeting) is consistent and contradicts the petitioner's account, the AG accepts that record. The AG also relied on Del. Op. Att'y Gen. 18-IB05, where competing factual narratives without documentary tiebreakers led to a "we cannot determine a violation" result. Here, the minutes broke the tie in the Town's favor.

The First Amendment overlay matters: Reeder v. Del. Dep't of Ins. points out that even though FOIA does not require comment periods, courts apply non-FOIA bodies of law to ensure public bodies discharge their duties in a "non-arbitrary and public-regarding manner." The opinion cites Reeder for that proposition but resolves the petition on the factual record, not on a First Amendment analysis.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Reeder v. Del. Dep't of Ins., 2006 WL 510067 (Del. Ch. Feb. 24, 2006)
• Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276 (Jan. 30, 2018)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/04/20/22-ib14-04-20-2022-foia-opinion-letter-to-william-weistling-jr-re-foia-complaint-concerning-the-town-of-fenwick-island/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB14.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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 No. 22-IB14
April 20, 2022

VIA EMAIL
William Weistling, Jr.
[email protected]

RE:

FOIA Petition Regarding the Town of Fenwick Island

Dear Mr. Weistling:

We write in response to your correspondence alleging that the Town of Fenwick Island violated Delaware's 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 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the factual record does not support the alleged violation.

BACKGROUND

On March, 4, 2022, the Town Council held a public hearing to consider four ordinances, including an ordinance regarding low speed vehicles. Comments regarding the ordinance regarding low speed vehicles exceeded the allotted time for the public hearing, and the comment period was suspended to allow the previously-scheduled regular Council meeting to begin. The Council held a regular Council meeting, during which the public comment period regarding this ordinance resumed and the Council then voted on this ordinance. After the vote, the Town Council held another public comment period later on the agenda, called "Public Participation," where others continued to comment on this ordinance.

This Petition alleges that the Town Council improperly allowed only certain members of the public to speak at the public hearing. At the hearing, you allege that the Mayor announced that any member of the public who submitted written comments may not speak at the public comment period of the hearing, as the written comments would be included in the record. You state that the written comments were not read into the record. You allege that one citizen, who had gathered 155 signatures on his comments was not permitted to speak until the regular meeting in a section called "Public Participation," which was hours later, after the final vote on the ordinance, and after most of the attendees had left. Accordingly, you contend that the Town violated FOIA by not allowing all citizens to speak at this public hearing, and you ask that the Town be compelled to read aloud the previously submitted written comments at the beginning of a future meeting.

The Town's counsel provided a response on March 30, 2022 ("Response"). The Town asserts that it met FOIA's open meeting requirements and attached copies of the approved minutes for the March 4, 2022 public hearing and regular Council meeting. The Town states that although neither a public hearing nor a public comment period were required before passage of this ordinance, the Town voluntarily held a public hearing and allowed verbal and written public comment. The Town states that public comment was suspended at the end of the hearing and then re-opened during the Council meeting; any member of the public who wished to provide verbal comment on the Ordinance was given an opportunity to do so, either at the Hearing or at the Meeting; you provided comments during the meeting; and the written comments were submitted into the record and received by Council prior to the vote. The Town asserts that it "did not prohibit any member of the public from providing written or verbal comment."[1] Prior to the vote, the Town states that the public was specifically asked whether there were additional comments. The Town asserts that "[i]f some members of the public chose to leave the Meeting, or otherwise chose not to make verbal comment, that was their choice, not the Town's."[2] Further, if certain members of the public chose to speak at the "Public Participation" period after the ordinance passed, the Town asserts that it was their decision to do so. The Town contends that there is no FOIA provision requiring that written public comments be read aloud at a meeting, and such a requirement would hinder the efficiency of the meeting and only serve to discourage public bodies' acceptance of written comments.

DISCUSSION

A public body carries the burden of proof to demonstrate compliance with FOIA.[3] In certain circumstances, a sworn affidavit may be required to meet that burden.[4] A public body is not required to hold a public comment period during a meeting, but if it chooses to do so, it must conduct that public comment period in accordance with FOIA, the First Amendment, and all other applicable laws.[5] The Petition alleges that the Town Council did not allow people who submitted written comments to speak at the hearing, but in this case, the public comment period for this ordinance spanned the hearing and the meeting. The Town stated that "any member of the public who wished to provide verbal comment on the [o]rdinance was given an opportunity to do so, either at the [h]earing or at the [m]eeting." As evidentiary support, the Town submitted the approved minutes for the Council meeting, which provided that "all individuals who had not had an opportunity to present their views at the hearing were given time to express their views during the Town Council meeting prior to any vote being taken," and with respect to this ordinance in particular, that "[a]ll residents who had not had an opportunity to present their views during the scheduled hearing were permitted to offer their written and/or oral comments during the Town Council Meeting prior to voting."[6] The approved minutes of the public hearing also support the Town's contention, revealing that one resident, who submitted written comments, also gave verbal comments at the public hearing.[7]

Based on this evidence, we find that this ordinance's public comment period, although it was conducted in a bifurcated format, allowed for verbal comments from citizens who submitted written comments. Thus, we determine that the factual record submitted by the parties in this case does not support the alleged violation.[8] To the extent that this dispute perhaps arose out of a misunderstanding regarding the acceptance of verbal public comments, we recommend the Town Council clearly inform attendees at future meetings how to offer verbal comments during the public comment period, especially when that comment period must be bifurcated.

CONCLUSION

For the reasons set forth above, we find that the factual record does not support the violation alleged in the Petition.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
Deputy State Solicitor

cc:

Luke W. Mette, Attorney for the Town of Fenwick Island

[1] Response, p. 3.
[2] Id., p. 4.
[3] 29 Del. C. § 10005(c).
[4] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[5] Reeder v. Del. Dep't of Ins., 2006 WL 510067, at 12-13 (Del. Ch. Feb. 24, 2006) (determining that although FOIA does not require a public body to hold a public comment period, "[t]his is not to say that there are not bodies of law that courts can and must apply to make sure that public bodies discharge their legal responsibilities in a non-arbitrary and public-regarding manner.").
[6] Response, Ex. B.
[7] Response, Ex. A. The hearing minutes include the names and summaries of the comments received at the hearing and meeting and delineate the citizens who spoke at the hearing and those who spoke at the meeting.
[8] See Del. Op. Att'y Gen. 18-IB05, 2018 WL 1061276, at 6 (Jan. 30, 2018) ("Under the circumstances, we are not able to make a determination in this case of whether a FOIA violation has occurred because the record reflects competing, irreconcilable statements of fact that cannot be resolved on this record.").