2411 Berwyn Road

Wilmington, DE 19810-3524

Re: Freedom of Information Act Complaint Against Joint School Boards of New Castle County

Dear Mr. Parks:

We received your complaint alleging that the joint school boards of New Castle County ("Joint Board") were meeting in violation of the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"). You allege that the Joint Board "consists of representatives of each of the public school boards in New Castle County" and that it is a public body covered by FOIA because it "functions on public funds and does, at least indirectly, influence public policy."

We asked the school boards to respond to your complaint. David H. Williams, Esquire, counsel for five of the school boards (Appoquinimink, Brandywine, Christina, Colonial, and New Castle Vocational-Technical) confirmed that "[r]epresentatives of the six school districts in northern New Castle county meet for breakfast once a month during the school year to discuss issues of common concern." According to Mr. Williams, the Joint Board invites elected officials and employees of other government agencies to attend. For example, at the January 26, 2001 meeting that is the subject of your FOIA complaint, the Joint Board invited Wilmington Mayor Baker and Wilmington Council President Blunt to share their thoughts on the creation of a City of Wilmington School District.

Mr. Williams stated that "[o]ne or two Board members from each of the Boards attends these breakfast meetings. While the Presidents of the respective Boards typically attend the breakfast meetings, the identity of the Board members in attendance varies from meeting to meeting. In addition to Board members, 2 to 3 administrators from each District attend the meetings. None of the Boards in attendance post notice of such meetings pursuant to [FOIA]."

Counsel for the Red Clay Consolidated School District, Alfred J. D'Angelo, Jr., Esquire, confirmed that "one or two Board members plus Administrators of the different school districts will meet as individuals to discuss issues that have a common bearing with school boards in order to gather information." According to Mr. D'Angelo, the representatives who attend the Joint Board meetings then share that information "at the home school board meeting" which is "properly noticed" and "open to the public."

Our office then asked Mr. Williams for additional information regarding the Joint Board meetings. According to Mr. Williams, the responsibility for coordinating the meetings "is rotated alphabetically on an annual basis among the participating Districts. The president of the Board of Education of the 'host district' chairs the meeting." No minutes of those meetings are maintained, and Mr. Williams acknowledged that there are occasions "when a Board member who attended a breakfast meeting will return to his or her Board's regular meeting and report on information received at a breakfast meeting. If the Board needs to take some action as a result of such a report, the discussion and voting occurs in the public session of the Board meeting."

Mr. Williams provided us with copies of invitations sent out for breakfast meetings held over the course of October 2000-May 2001. All of the meetings were held at the Christiana Hilton, and included such guests as Governor Ruth Ann Minner, Secretary Valerie Woodruff, and members of the General Assembly to discuss legislative priorities affecting the school system.

At our request, Mr. Williams supplemented this information with the invitations for Joint Board meetings and minutes of individual school board meetings for January-June 2002.

FOIA requires that "[e]very meeting of all public bodies shall be open to the public" except as authorized by statute for executive session. 29 Del. C. § 10004(a). FOIA also requires all public bodies to "give public notice" of their meetings "at least seven days in advance thereof." Id.

§ 10004(e)(2). And a public body must "maintain minutes of all meetings." Id. § 10004(e)(4).

FOIA defines a "public body" as "any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including but not limited to, any board, commission, department, agency, committee, ad hoc committee, subcommittee, legislative 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 body or public official of the State or otherwise empowered by any state governmental agency, 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 make reports, investigations or recommendations.

29 Del. C. § 10002(a).

The school districts contend that the Joint Board meetings were not meetings of a "public body" because no meeting of any one school district took place because less than a quorum of each school board attended. Alternatively, the school districts contend that the collective group of representatives from different school districts is not a formal organization and is not a "public body" within the meaning of FOIA.

A. Delaware

1. Case Law

In Delaware Solid Waste Authority v. The News-Journal Co., Del. Supr., 480 A.2d 628 (1984), the Delaware Supreme Court observed that the definition of a "public body" in FOIA "consists of two principal elements. First, the organization must fall within one or both of the broad categories of executive or legislative entities of the State or a political subdivision thereof." 480 A.2d at 632. "The second definitional element of a public body is that the entity be supported in whole or part by public funds, expend or disburse such public funds, or be specifically charged by any other public body to advise or make recommendations." Id.

Our Office has previously considered the application of these definitions to joint meetings of different public bodies. Such a hybrid body can be looked at two ways. Each delegation from any one public body may constitute a "committee" of that public body triggering the open meeting requirements of FOIA. Or, the collective joint body may be a type of public body contemplated by the statute.

2. Attorney General Opinions

In Att'y Gen. Op. 97-IB13 (June 2, 1997), we noted that the "application of the open meeting law to joint meetings of different bodies does not lend itself to bright lines. On the one hand, there is 'no reason why a joint discussion meeting of several public bodies with respect to matters of mutual public concern should not be fully subject to [FOIA] as is a discussion of a single body with respect to matters of public concern.' Allen-Deane Corp. v. Township of Bedminster, N.J. App., 379 A.2d 265, 268 (1977). On the other hand, the public policies behind [FOIA] may not be implicated where a joint meeting is 'informational' only and 'not for the purposes of official action.' Woodbury Daily Times Co. v. Gloucester County Sewerage Authority, N.J. App., 386 A.2d 445 (1978)."

In Opinion 97-IB13, the mayor and three members of the city council attended a non-public meeting at the invitation of the local chamber of commerce to discuss matters such as street paving, parking, parks, and police. We determined that, based on the record presented, the city delegation was not a "committee" established or appointed by the council for purposes of FOIA. We reviewed the minutes of the next several council meetings following the joint meeting and it did "not appear that any matters of public business that were discussed at the Chamber of Commerce meeting in January were also the subject of any formal action at a later Council meeting." "[T]he Council members attended the Chamber of Commerce meeting to obtain information only and they did not actively participate in the discussion of public business that was later the subject of formal action taken by the City Council at one of its own meetings."

In Att'y Gen. Op. 99-IB15 (Dec. 9, 1999), there was a joint meeting of members of the city planning department, the chairman of the city council's parking committee, representatives from a regional planning authority, and private engineering consultants to review the technical details of a recently awarded construction project. We determined that this was not "the kind of meeting of a 'public body' that is controlled by FOIA. Comprised of individuals from four different organizations, the group as a whole cannot be viewed as a single statutory body, as contemplated by the open meeting law." We cautioned that not "every 'joint' meeting of public officials from different public bodies is outside the scope of FOIA. The issue can only be decided on a case-by-case basis, depending on the facts presented. This Office will continue to closely scrutinize such instances to assure that public bodies do not circumvent the clear mandate of public access to their meetings."

In reviewing each unique set of facts, as we have in the past, we look to the law in other states for guidance.

B. Court Decisions In Other States

1. Connecticut

In Board of Trustees of Woodstock Academy v. Freedom of Information Act Commission,

Conn Supr., 436 A.2d 266 (1980), the Connecticut Supreme Court held that a private school was subject to the public records law. The Connecticut Freedom of Information Act applies to any "public agency" defined as: "any executive, administrative or legislative office of the state . . . and any state or town agency, any department, institution, bureau, board, commission or official of the state or of any city, town, borough, municipal corporation, [or] school district . . . ." Conn.Gen.Stat.

§ 1-18a(a). Woodstock Academy is a private, non-stock corporation, and did not technically fit within that definition. The Supreme Court, however, held that it was the "functional equivalent" of a school district.

"The federal courts have consistently rejected formalistic arguments of the sort advanced by [Woodstock Academy]. . . . '[A]ny general definition [of a government agency] can be of only limited utility to a court confronted with one of the myriad of organizational arrangements for getting the business of government done.'" 436 A.2d at 270 (quoting Washington Research Project, Inc. v. Department of Health, Education & Welfare, 504 F.2d 238, 245-46 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975)). The facts must be analyzed on a case-by-case basis "to ensure that the general rule of disclosure underlying this state's FOIA is not undermined by nominal appellations which obscure functional realities." 436 A.2d at 271.

2. Oregon

In Marks v. McKenzie High School Fact-Finding Team, Ore. Supr., 878 P.2d 417 (1994),

a school district asked the Confederation of Oregon School Administrators (COSA) to appoint a fact-finding team to investigate problems at a high school. COSA appointed three of its members -- two retired public school administrators and one administrator on leave. Parents made a FOIA request for the team's investigative report and recommendations. The Oregon public records law applies to any "public body," defined as "every state agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state." Or.Rev.Stat. § 192.410(3). The Oregon Supreme Court held that in construing the term "public body," the "legislature would have intended this court to apply a 'functional' approach similar to that taken by the federal courts and by many of our sister states." 878 P.2d at 424. The court identified six factors to consider:

(1) Whether the entity was created by government or had some origin independent of government;

(2) Whether the functions performed by the entity were traditionally associated with government or commonly performed by private entities;

(3) Whether the entity has the authority to make binding governmental decisions, or only makes nonbinding recommendations;

(4) Whether the entity receives financial support from the government, which may include payment of the entity's members or fees as well as provision of facilities, supplies, and other nonmonetary support;

(5) Whether the government exercises control or supervision over the entity's operation; and

(6) Whether the members of the entity are government officials or government employees.

Factors (1) and (2) weighed in favor of the fact-finding team being a public body. It "was created at the initiative of the school board -- a government body" and its investigatory function "was sufficiently related to the statutory duties of the school board." 878 P.2d at 425. On the other hand, the team did not have any binding decision-making authority; it did not receive any financial support from the school district; the district did not exercise any control over its investigation; and the team members were not government officials or employees. "Weighing all the foregoing factors, we conclude that the facts are insufficient to show that [the fact-finding team] is a 'public body' within the meaning of [the Oregon public records law]." Id. at 426.

3. Arkansas

In North Central Association of Colleges & Schools v. The Jonesboro Sun, Ark. Supr., 548 S.W.2d 825 (1977), a newspaper sued for public access to meetings of the Arkansas State Committee of the North Central Association of Colleges and Schools. The Association is a voluntary national organization of colleges and secondary schools with over 5,000 members in 19 states dedicated to achieving and maintaining high academic standards. At a meeting closed to the public, the State Commission discussed the possible loss of the accreditation of the Jonesboro High School following an investigation by the Commission.

The Arkansas Freedom of Information Act applies to the "meetings of any bureau, commission, or agency of the state, or any political subdivision of the state, including municipalities and counties, boards of education, and all other boards, bureaus, commissions or organizations of the [state], except grand juries, supported wholly or in part by public funds or expending public funds." Ark.Code Ann. § 25-19-103. The Arkansas Supreme Court rejected the argument that FOIA did not apply to the Association because it is a private, nonprofit corporation, which was not authorized or created by state statute. The state open meeting law applied because the State Committee "is composed of public servants" and is "supported wholly or in part by public funds." 548S.W.2d at 826-27..

While all ten members of the State Committee "are educators serving voluntarily and without compensation," the chairman "is an employee of the Arkansas Department of Education who uses his state owned office in performing his duties for the [national association]. His office secretary works for and is paid by the state. . . . Dues paid by the member schools in Arkansas support the [national association's] functions. . . . The State Committee makes recommendations to the parent organization if a school should be accredited and, also, if a member should suffer a loss of accreditation. . . . Obviously, the [national association's] policies and decisions, which are most laudable, have a great impact upon students and parents and are a matter of great public concern." 548 S.W.2d at 826.

In Spain v. Louisiana High School Athletic Association, La. Supr., 398 So.2d 1386 (1981), a newspaper sued to open the Athletic Association's meetings to the public. The Athletic Association is a private, voluntary, statewide organization of 450 private and public schools whose purpose is to assist, advise, and aid schools in organizing and running interscholastic sports. Each member school is represented by its principal. The governing body of the Athletic Association is an executive committee, comprised of persons chosen by the member schools. The Athletic Association is financed with member dues, a percentage of gate receipts from athletic events, and entry fees for sports and championship honors.

The Louisiana open meeting law applies to every "public body," defined to mean "village, town, and state governing authorities; parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operating utilities; planning, zoning, and airport commissions; and any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph." La.Rev.Stat. § 42:2. The Louisiana Supreme Court held that the Athletic Association "performs a function which is, by law, entrusted to the various bodies established for the regulation of public education." 398 So.2d at 1390. "Equally important is the degree of connexity between" the Athletic Association and "the regulatory functions" of the local school boards. Id. "Here, the connexity is close, since the Athletic Association performs a major policy-making, advisory and administrative function in an area that is within the primary control of [the school boards]." Id. "Viewed in this light," the Athletic Association constitutes "collective committees or subcommittees of the parish school boards" for purposes of the open meeting law. Id.

C. The Joint Board

We follow federal and state law authorities and adopt the "functional equivalent" approach to determine what is a "public body" under Delaware's FOIA.

A school board "is unquestionably a public body" for purposes of FOIA. New Castle County Vocational-Technical Education Association v. Board of Education of New Castle County Vocational-Technical School District, Del. Ch., Civ.A. No. 5700 (Sept. 25, 1978) (Brown, V.C.). The issue then is whether the Joint Board is an "association" or "group" established or appointed by "any body established by the General Assembly," i.e., the individual school boards. 29 Del. C. § 10002(a). Applying the six criteria identified in Marks v. McKenzie High School Fact-Finding Team, supra, we believe that the Joint Board is a "public body" for purposes of FOIA:

(1) The Joint Board was established by the individual school boards. Although this

was not done by any single formal action, the Joint Board has become an institutionalized public body through its regular monthly meetings to discuss public business.

(2) The Joint Board performs functions traditionally associated with school districts.

For example, over the course of January-March 2002, the Joint Board met with legislators from New Castle County. The purpose of those meetings "was not merely for academic discussion" but to urge the legislators to support new laws that would have a direct impact on the school districts. The News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 361 (1977) (Brown, V.C.).

(3) The Joint Board does not have the authority to make binding decisions on the

individual school districts. That factor is less relevant under Delaware's FOIA than in some states because "informal gatherings or workshops are part of the decision-making process" and so "must be conducted openly." Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., Civ,A, No. 1447 (Oct. 1, 1990) (Chandler, V.C.). The record shows that board members and school administrators who attended the Joint Board meetings reported back to the individual school boards which then sometimes took formal action.

(4) The Joint Board receives public funds. The host school district pays for the costs

of the hotel conference room and food with public funds. It does not matter if these costs are de minimis. FOIA applies if the public body is supported "'in whole or in part by public funds.'" Solid Waste Authority, 480 A.2d at 633 (quoting 29 Del. C. § 10002(a)(1)).

(5) The Joint Board is completely controlled by the individual school boards who make

up its members.

(6) The members of the Joint Board are all government officials or government

employees.

Delaware's open meeting laws apply to the Joint Board because it is "composed of public servants" and is "supported wholly or in part by public funds." North Central Association, 548 S.W.2d at 826-27. Under a "functional equivalent" approach, we do not think that it matters whether a group or association is appointed by a single public body, or collectively by different public bodies of a similar nature, where the collective body meets on a regular, ongoing basis. We distinguish Att'y Gen. Op. IB15 (Dec. 9, 1999), where the collective group was comprised of representatives of disparate organizations (some public, some private), and gathered only once to start up a construction project.

Based on the facts presented, we choose to view the Joint Board as a unitary public body rather than an assembly of public bodies, in large part because the record indicates that only one or two representatives from each school board attended the breakfast meetings. We note, however, that it appears that a quorum of the Brandywine School Board attended the joint meeting with legislators on February 21, 2002. We also discern a high degree of connexity between the topics of discussion at Joint Board meetings and meetings of individual school boards that followed, in contrast to the facts presented in Att'y Gen. Op. 97-IB13 (June 2, 1997).

The Joint Board may also be properly viewed as "collective committees or subcommittees of the [individual] school boards" with each committee or subcommittee subject to the open meeting law. Louisiana High School Athletic Association, 398 So.2d at 1390. Each committee or subcommittee therefore would have to notice to the public its participation in the Joint Board meetings. However viewed - as a collective public body, or as a collection of public bodies - FOIA requires that meetings of the Joint Board be open to the public.

For the foregoing reasons, we determine that the Joint Board is a "public body" for purposes of FOIA and subject to all of the requirements of the open meeting laws. We direct each of the participating school boards to notice these meetings to the public in the future in the same manner as they would a meeting of the individual school board under FOIA. and to maintain minutes of the joint meetings. We do not believe that any remediation is necessary for past meetings of the Joint Board. Your complaint did not specify any particular action taken by a school board as a result of a Joint Board meeting which you feel should be invalidated, but rather addresses the general process by which the Joint Board meets. We caution the Joint Board and the individual school boards to comply with the open meeting requirements of FOIA in the future.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED:

Malcolm S. Cobin

State Solicitor

David H. Williams, Esquire

Alfred J. D'Angelo, Jr., Esquire

Phillip G. Johnson, Opinion Coordinator

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