Civil Division – New Castle County
June 20, 1996
Del. Op. Atty. Gen. 96-IB23 (Del.A.G.), 1996 WL 517389
(determining that public bodies did not violate open meeting requirements by taking matters “under advisement,” notwithstanding that process may have caused confusion, and that public bodies were not required to hold meetings in a larger forum based on balancing of the public’s right of access against the burden of providing additional public access)
Mr. William D. Bell, Secretary
The Hudson Pond Preservation Society, Inc.
734 Jasmine Drive
Lincoln, DE 19960
Re: Freedom of Information Act Complaint – 29 Del. C. § 10005(e)
Sussex County Council
Sussex County Planning & Zoning Board
Sussex County Planning & Zoning Office
Sussex County Board of Adjustments
Dear Mr. Bell:
Please consider this the Attorney General’s written determination pursuant to 29 Del. C. §10005(e) in the above-referenced matter.
As you are aware, after the Attorney General’s Office reviewed your Complaint on January 22, 1996, it was required to conduct an investigation to determine the validity of the Complaint. 29 Del. C. § 10005(e). A response to your Complaint was requested in a January 26, 1996 letter to the President of the Sussex County Council, the Chairman of the Sussex County Planning & Zoning Board, the Chairman of the Sussex County Board of Adjustment and the Director of the Sussex County Planning & Zoning Office (hereinafter “public bodies”).
On January 30, 1996, the Attorney General’s Office received an amendment to your Complaint, and on February 5, 1996 this amended Complaint was forwarded to the public bodies for a response. On February 20, 1996, this Office received a response from the Assistant County Attorney on behalf of all the public bodies. On February 22, 1996, this Office received from you a response to comments of the Assistant County Attorney. Finally, on February 28, 1996, a second amended Complaint was forwarded to the Assistant County Attorney and a response was received on March 14, 1996.
Your Complaint states in general terms,(1) that in the past several years, your organization has attended and participated in numerous public hearings held by the Sussex County Council (“SCC”), the Sussex County Planning and Zoning Board (“P & Z”) and the Board of Adjustment (“BOA”) and that these public bodies have on numerous occasions violated the Freedom of Information Act (hereinafter “the Act”). These violations to the Act were alleged to have occurred when the public body would announce that a matter discussed at a public meeting would be “taken under advisement,” or when a public meeting would be scheduled in a room too small to allow all those in attendance to observe and participate in the meeting.
In response to your Complaint, the Assistant County Attorney advised that the meetings of the public bodies specified in the Complaint remain open to the public and a record of the proceedings are kept. The attorney added that to make an issue of the limited capacity of meeting rooms is to fail to recognize limitations on facilities and the impossibility for any of the public bodies to know what issues will generate large attendance at public hearings.
THE LAW
§ 10001. Declaration of policy.
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
§ 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
(e)(2) 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 thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.
(4) 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.
(f) 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 (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.
OPINION AND ORDER
For the reasons stated below, we conclude that the public bodies did not violate the Act by “taking matters under advisement” and holding meetings in places allegedly too small to allow for participation and observation by the public.
First, the Complaint and the amended Complaints do not allege a violation of a specifically enumerated requirement of the Act such as failing to give public notice of a meeting, failing to maintain minutes of a meeting or calling an Executive Session without a recognized purpose. However, we understand the main allegations to be that the public bodies in question violated the spirit of the Act contained in the Declaration of Policy in § 10001 that public business be performed in an open and public manner.
In response, the public bodies argue that their actions conform to the Act by stating the following:
The management of an agenda by taking cases under advisement, concluding the public hearing process, dealing with other agenda items, and returning to the decision making process does not violate the Freedom of Information Act so long as the meeting remains open to the public and a record of the proceeding is kept.
This is a correct statement of the law provided that the conduct of the public hearing took place in the manner so stated. However, we understand the public bodies’ statement that the matter is being “taken under advisement” may be confusing to those members of the public in attendance. Thus, you are correct when you state:
When the public body declares that it will take the matter under advisement, the public is left with the impression that their participation has ended, that voting and discussion on the matter or issue will take place outside the sphere of observance.
This confusion is certainly enhanced when the public body’s announcement to the public that they may “call the office in the morning during business hours for our decision” is not fully explained and placed in context, and when such an announcement is made during the public hearing. If the public body is not going to deliberate and vote at the conclusion of each application, then, in fairness, the public body should clearly announce the time and place of the deliberation and vote, should advise the public that the session is open, and should announce that if the public elects not to attend the vote, that they can call the office in the morning during business hours for the decision. The procedure, although not specifically mandated by the Act, certainly complies with the spirit of §10001.
The record shows that the public bodies did not make the additional announcement suggested to promote fairness, but since this suggestion is not specifically required by the Act, stating that the matter is taken under advisement, without more, is not a violation of the Act.
Second, the comments concerning correctness and fairness in this Opinion also apply to the issue of whether the room made available for the public hearing was large enough to allow the public to observe and participate. In this regard, this Office requested additional information in an April 8, 1996 letter to the public bodies.(2) In a response received April 15, 1996, the public bodies indicated that they had limited facilities that sometimes proved inadequate, and in the absence of regulations and lacking facilities that were audio or video accessible, the Director of the Planning and Zoning Commission had little flexibility to determine where a hearing is held.
A review of the case law reveals that the adequacy of the facilities` provided for public meetings is subject to court review. The Supreme Court of Wisconsin considered charges of violations of an open meeting statute and advised:
When the meeting place may not be large enough to accommodate all the people who may wish to attend, the governmental unit must balance the public right of access against the burdens that providing additional public access would impose on the governmental unit.
• • •
When as happened in this case, a meeting place is challenged under the open meeting law as being too small to be reasonably accessible to members of the public, the court’s role is to review the decision of the governmental unit to determine whether its selection of the meeting place was reasonable. In doing so, the Court need not look for optimal outcomes, but must seek to determine whether the local governmental unit achieved a reasonable balance under the circumstances presented at the time its decision was made.
State v. Village Board of the Village of Greendale, Wisc. Supr., 494 N.W.2d 408, 420 (1993). The size of the facilities scheduled for a public meeting is a factor considered in adjudging a public body’s compliance with the Act. There should be a record made of the reasons for selecting a site for a hearing so that, if necessary, the decision is reviewable for a determination of reasonableness.
In this case, the facts demonstrate that the County has limited facilities and these facilities are used for meetings of differing size. The public bodies do alter the place of the public meeting in response to the anticipated or actual crowd, going from the County Chambers to the courtrooms when needed and available. There is no basis for finding a violation of the Act, but the public bodies are encouraged to establish a record of the selection of the meeting place to allow for review.
In the March 11, 1996 response to the amended complaint, the attorney for the Board of Adjustment states:
It is not the function or obligation of the Board of Adjustment to either encourage or discourage citizens from viewing its process.
Although this statement is true in the abstract, once the Board initiates parliamentary procedures such as taking a matter “under advisement” or suggesting that information is available by “calling the office in the morning,” any public body has an affirmative duty to ensure that its actions have not confused the public. This is especially true when the confusion could cause the public to waive unknowingly, or enjoy less fully, the rights afforded by the Act. The Act certainly encourages public presence at public business, and it is the function of a public body to ensure that the members of the public body do nothing to discourage the participation of the public. We, however, do not find a violation of the Act by the public bodies based upon the record.
Third, the many remaining issues raised in the Complaint are not properly before this office pursuant to § 10005(e) because the Act does not address the subject of whether the Sussex County Council is responsible for the actions of the Board of Adjustments or Planning and Zoning Board. Similarly, the operational procedures for the Sussex County Council, and the requirements of notifying adjacent property owners for a Board of Adjustment hearing are not within the scope of the Act. Finally, the Act does not regulate what persons are notified of decisions by the Sussex County Planning and Zoning Office.
The Act requires that a public body give notice of when and where it will meet and what is on its agenda, and allow the public to observe the meeting. This Office finds that the allegations that the public bodies violated the Act are unfounded. A review of the multiple Complaints and responses, however, evidences a need for all parties to understand both the provisions of the Act and the responsibility of public bodies to facilitate the openness of public meetings.
Very truly yours,
James J. Hanley
Deputy Attorney General
W. Michael Tupman
Deputy Attorney General
APPROVED:
Michael J. Rich
State Solicitor
JJH/WPT/jb
cc: Dennis L. Schrader, Esquire
Peter B. Jones, Esquire
Mr. Terry Plowman, Coast Press
Ms. Elizabeth Bacon, Opinion Administrator
1. Your second amended Complaint does make specific reference to the January 22, 1996 Board of Adjustment meeting, but these references are not considered separately because they present the same issues presented in the original Complaint and first amended Complaint.
2. This letter asks for:
1. A copy of any Regulation or Procedure applicable to the selection of where a public hearing of your agency will be held;
2. In the absence of Regulations or Procedures, what office or individual has the responsibility for selecting the place of a public hearing for your agency;
3. What criteria are used to select where the public hearing will be held;
4. What weight or priority is assigned to the criteria used to select where the public hearing will be held;
5. What, if any, record is made of the decision where a public hearing is to be held;
6. What procedures are available for changing the place established for a public hearing and when are they invoked; and
7. Do any facilities available for a public hearing for your agency have a capability for audio or video access to the meeting room.

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