Civil Division-Kent County (739-7641)
Mr. Gerald A. Lechliter
44 Harborview Road
Lewes, DE 19958
Re: Freedom of Information Act Complaint Against University of Delaware
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."
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.
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
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
William E. Manning, Esquire
Mr. Phillip G. Johnson
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