July 22, 1996
Del. Op. Atty. Gen. 96-IB25 (Del.A.G.), 1996 WL 517417
(determining that reconsideration of AGO 96-IB19, solely with respect to whether remediation in the form of de novo review was appropriate or necessary, was appropriate in light of “unusual circumstances,” and that town council was in the best position to determine and weigh potential consequences of de novo review of zoning action)
Mr. Kirk Albertson
1810 Jebb Road
Wyoming, DE 19934
The Honorable Scott G. Nichol
Town of Camden, Delaware
261 Camden-Wyoming Avenue
P. O. Drawer 1002
Camden, DE 19934
Ms. Janice Nichol
RD 2, Box 60
Camden, DE 19934
Mr. Glenn E. Hitchens, Esquire
Morris, James, Hitchens & Williams
32 W. Loockerman Street, Suite 202
Dover, DE 19904
Mr. Paul D. Sunshine, Esquire
1140 South State Street
P. O. Box 541
Dover, DE 19903
Mr. William E. Manning, Esquire
Duane, Morris & Heckscher
1201 Market Street, Suite 1500
Wilmington, DE 19801
Re: Freedom of Information Act Complaint
Town of Camden/Camden Town Council
Public Hearing of December 5, 1995
Ladies, Gentlemen and Counsel:
In an opinion dated June 3, 1996 (“June 3 Opinion”), the Attorney General’s Office determined that the Camden Town Council (“Council”) had violated three sections of the Freedom of Information Act (“FOIA”) in connection with a public hearing held on December
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5, 1995. Specifically, the June 3 Opinion found: (1) The notice of the hearing was deficient because there was no notice of the Council’s intention to go into executive session, no notice of any amendments to the agenda, and no notice on the agenda that the Council would be voting on proposed zoning changes, in violation of 29 Del. C. Section 10004(e)(2); (2) The Council went into executive session without holding a formal affirmative vote of the majority of the members present; The agenda did not set forth the purpose of the executive session, in violation of 29 Del. C. Section 10004(c); (3) No minutes of the executive session were prepared, in violation of 29 Del. C. Section 10004(f).
The Attorney General’s Office directed “the Council to take remedial action by re-noticing the public meeting with an agenda that complies with the provisions of FOIA. If the Council fails to take such corrective action, the Attorney General may undertake enforcement action pursuant to 29 Del. C. Section 10005(e).”
By letter dated June 10, 1996, one of the citizen complainants, Mr. Kirk Albertson, sought to confirm his understanding that the June 3 Opinion requires the Council to re-notice and hold another public hearing on the matters before the Council on December 5, 1995. By letter dated June 12, 1996, William E. Manning, Esquire, asked this office to review the June 3 Opinion and reconsider our position. By letter dated June 14, 1996, the Council, through its attorney Glenn E. Hitchens, Esquire, asked this office to reconsider and clarify the remedial action it directed the Council to take.
29 Del C. Section 10005(e) does not make any provision for clarification or reconsideration of a written determination by the Attorney General in response to a petition
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alleging a FOIA violation. Nevertheless, because of the unusual circumstances of this case, this office gave all the interested parties the opportunity to make further written submissions with respect to the sole issue of whether remedial action is appropriate or necessary, given the nature of the FOIA violations already determined. Accordingly, we have treated the FOIA violations as part of a complaint of ongoing violations, and issue this further opinion.
This office received four written submissions regarding the issue of remediation: a letter dated June 25, 1996 from the original complainants, Mr. Kirk Albertson and Ms. Janice Nichol; a letter dated June 27, 1996 from Paul D. Sunshine, Esquire; a letter dated June 28, 1996 from the Council’s attorney; and a letter dated June 28, 1996 from Mr. Manning. To the extent those further written submissions continue to challenge the original findings of FOIA violations by this office, those arguments are not addressed in this opinion, since they were already addressed in the June 3 Opinion.
29 Del. C. Section 10005(a) provides that “[a]ny action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery.” Subsection (e) further provides: “If the Attorney General finds that a violation of this chapter has occurred or is about to occur, the citizen may: (1) File suit as set forth in this chapter; or (2) request in writing that the Attorney General file suit on the citizen’s behalf. If such request is made, the Attorney General may file suit, . . . The citizen shall have the absolute right to file suit regardless of the determination of the Attorney General, . . . .”
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The decision whether to file suit in the Court of Chancery is clearly within the discretion of the Attorney General, since the statute states that the Attorney General “may” file suit. The Attorney General’s discretion is reinforced by the right of any citizen to file suit, irrespective of whether the Attorney General finds a FOIA violation.
We address at the start the Council’s argument that the Attorney General does not have “the authority or jurisdiction to impose remedial action.” We disagree. While it is true that only the Court of Chancery may issue “an injunction” or “writ of mandamus” for relief for a violation of FOIA, 29 Del. C. Section 10005(d), it is the Attorney General who is charged under the statute with the responsibility to investigate and respond to petitions alleging FOIA violations. Further, the Attorney General is given standing to sue in Chancery Court for FOIA violations. Having found a FOIA violation, it would be an abdication of the Attorney General’s unique role in this process not to express some opinion on the need for and type of remedial action, if any, to resolve the complaint. In most cases, the public body takes the recommended remedial action, and expensive and wasteful litigation is avoided. The Attorney General has, in the past, required remedial action for FOIA violations and will continue to do so in the future, subject always to judicial case law.
In Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen, C.), plaintiffs alleged that the Board of Elections had violated FOIA by failing to give proper notice of a public meeting where the board had decided to open fewer polling places in New Castle County in an upcoming primary. The Court of Chancery concluded that the board had committed four FOIA violations with respect to action taken at that
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public meeting, and “that such failure was not merely technical but, in the circumstances, substantial; that the policies sought to be fostered by [FOIA] are acutely involved in a matter of this kind in which an appointed public body makes decisions relative to the effective exercise of the right to vote . . . .” 1986 WL 9610, at p.4. The Chancellor, however, reserved the “question of appropriate remedy for this violation” to allow the parties time for further argument on that issue. Id.
In dicta, the Chancellor observed that “[n]ot every failure to comply with precision to the terms of [FOIA] will involve substantial rights and thus not every technical violation will support either a declaratory judgment or, more importantly, injunctive relief.” Id. at p. 5. But the “remedy of invalidation” is a “serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests.” Id. at p. 6.
In Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., 1994 WL 274295 (May 19, 1994) (Jacobs, V.C.), the Chancery Court found that the board had violated FOIA in discussing proposed regulations in executive session. Although invalidation of a decision by a public body “is not an action to be undertaken lightly . . . in this case material violations of both the letter and spirit of FOIA have occurred that adversely affect substantial public rights, and no ‘other legitimate public interests’ are implicated for which a protective specific remedy need be crafted.” 1994 WL 274295, at p. 14. The board “has been unable to suggest any appropriate lesser remedy. Moreover, to void the Regulations as invalidly adopted will not visit adverse consequences upon innocent parties,
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because the Regulations have never been, nor are they presently being, enforced. The Board has not demonstrated that the public would be harmed if that status quo were allowed to continue for a brief period pending a remedial rule-making process in compliance with FOIA.” Id. at p. 15.
In Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147 (Oct. 1, 1990) (Chandler, V.C.), the Chancery Court found that the school Board had discussed and considered public business in “workshops” closed to the public, without notice or minutes taken. “[T]he Board discussed redistricting and reorganization issues, despite the fact that such public business clearly is not a permissible subject for discussion in an executive session.” 1990 WL 154147, at p. 4. The court rejected the Board’s claim that the FOIA violations were merely “technical,” because the public had ample opportunity to express its views on reorganization issues during public hearings and meetings, reorganization issues were thoroughly aired in the local media, and the Board’s vote to approve the disputed plan was both unanimous and publicly recorded.
This argument, in my opinion, rings hollow in light of the plain
mandate of the Act and its broad policy declarations.That an issue
is sufficiently controversial to receive widespread publicity,or that
public input is allowed through hearings, hardly justifies holding
closed sessions to discuss public business in violation of the open
1990 WL 15417, at p. 5. The court was not persuaded by the Board’s “harmless violation” theory that violations of FOIA could be “cured” by subsequent action. The court, however,
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declined to enjoin the operation of the board’s school reassignment plan, because of “the serious consequences to the community and to the school should the ninth grade plan be enjoined.” Id. at p. 8.
In its most recent written submission, the Camden Town Council recognized “that written minutes could be prepared identifying the individuals present at the executive session and summarizing the discussion that occurred, and that this brief written document would be easily reproduced and made a part of the public record.” We continue to maintain that the language of the statute is mandatory: “Each public body shall maintain minutes of all meetings, including executive sessions, . . . .” 29 Del. C. Section 10004(f). The statute is silent as to when those minutes must be prepared, although they would have to be prepared within a reasonable time to be an accurate recollection of what happened, and to allow the public an opportunity to challenge any decision made in executive session before it was too late. One of the purposes of requiring minutes of executive sessions is to provide a basis for a reviewing court to determine if the matters discussed were within the parameters of 29 Del. C. Section 10004(b). Although a tape recording of the executive session may serve that same purpose, written minutes still must be prepared. In order to comply with the clear statutory mandate, the Council must do so both in this case and with respect to any future executive sessions..
As for the violations of 29 Del. C. Section 10004(c), we do not believe that, standing alone, they warrant invalidation of the Council’s re-zoning decision. The tape of the executive session shows that the Council did not discuss the re-zoning proposal to the detriment of substantial public rights. We cannot know whether the Council intended to hold an executive
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session all along, or whether the need to do so arose only at the time of the public body’s meeting. Nevertheless, there is no excuse for the Council’s failure to comply with the public voting requirements of Section 10004(c), which are intended to make sure that there are legitimate grounds for holding an executive session closed to the public. Since the Council did not discuss any public business in the executive session on December 5, 1995, holding another public meeting to allow the Council to vote on the record whether to go into executive session would not serve any purpose at this time. The Council is warned, however, that it should strictly comply with the requirements of Section 10004(c) in the future.
The remaining FOIA violations are more troubling. We do not agree with their characterization as merely “technical,” nor do we accept the theory of a harmless violation where the requirements of public notice under FOIA are not met. This is particularly true where there has been an “ongoing pattern of infractions” of FOIA. Levy, 1990 WL 154147, at p. 7. See Letter dated March 5, 1993 from the Attorney General’s Office to (among others) Mr. Hitchens, on behalf of the Council (no public notice of meeting); Letter dated September 21, 1993 to (among others) Mr. Hitchens, on behalf of the Council (conceding that amendment to the articles of incorporation of Camden Sewer and Water Authority were not properly noticed on the agenda).
Where, as here, full public participation might have been denied because of inadequate notice, both the language and the spirit of FOIA are violated, and the strong public policies of the open meeting laws are thwarted. As explained by Chancellor Allen:
[I]t is desirable that affected citizens have an opportunity
first to provide the decision-making agency with their
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views and, second, have an opportunity to understand the
basis upon which the ultimate decision is made. When
public participation is afforded, it is reasonable to hope,
and the drafters of [FOIA] clearly did hope, that two kinds
of benefits would result. The public body might be put in a
position to make a better decision ultimately and, secondly,
a citizen or organization of citizens that understands the
decision may feel, if not pleased with the ultimate outcome,
at least content that its views have been considered and the
decision has been reached in an impartial and fair way.
Ianni, 1986 WL 9610, at p. 6.
The public notice provisions of FOIA must be strictly followed. When a public body knows that an important subject will be dealt with, it cannot “fail to draw the public’s attention to the fact that that specific important subject will be treated.” Ianni, 1986 WL 9610, at p. 5.
The re-zoning proposal in this case affects substantial public rights. A change in zoning profoundly affects not only the immediate neighborhood, but also the community at large. The very purpose of FOIA, as stated in the declaration, is to make sure all citizens have a right to know about, and have the opportunity to participate in “formulating and executing public policy.” 29 Del. C. Section 10001. The purposes of FOIA are frustrated when citizens do not participate in the public decision-making process because they are not fully aware what is being decided sufficiently in advance of a public meeting to make their views known.
Invalidation of the Council’s re-zoning decision would have the “wholesome effect” of notifying “public entities that the sunshine law will be strongly enforced, consistent with its remedial purposes.” Levy, 1990 WL, at p. 8. But the Chancery Court has stated that “the serious consequences to the community” must also be considered. Id.
We are not satisfied that this office can effectively gauge the serious consequences to the
community if we were to strictly require that the meeting be re-noticed and re-conducted. To do so might require an evidentiary hearing, which is beyond the scope of our responsibility
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under the statute. We believe that the Council, as the elected representatives of the citizens of Camden, is in the best position at this point to weigh the consequences to the local community in deciding whether to re-notice a public hearing on the re-zoning proposal. A number of citizens have already expressed their strong objection to the proposal, and the Council may want to fully consider the views of all interested citizens by considering the issue anew, with notice and a public meeting in full compliance with FOIA.
Finally, it is important to make clear that this opinion is limited to the specific facts of this case, and holds no precedential value for future opinions. Mr. Manning suggests in his most recent submission that this office did not direct remediation in other cases because “there was public discussion and a public vote,” thus making remediation unnecessary. We do not agree with his characterization of the rationale in those opinions. In any event, every FOIA
complaint is inherently fact-driven, and any recommendation of remedial action can only be decided on a case-by-case basis.
W. Michael Tupman
Deputy Attorney General
Kevin R. Slattery
Deputy Attorney General
Michael J. Rich
cc: Elizabeth A. Bacon, Opinion Administrator