October 17, 1996
Civil Division-New Castle County
Roger A. Aiken, Esq.
P. O. Box 390
Newark, DE 19715-0390
Re: FOIA Complaint
Dear Mr. Aiken:
This letter responds to yours of July 29, 1996 requesting that the Office of the Attorney General review and either modify or withdraw the opinion dated January 2, 1996 that found a series of meetings between the University and members of the City Council violated the Freedom of Information Act (“FOIA” or “Act”). We have reviewed the Newark opinion in light of the opinion we rendered in a matter involving Sussex County, Delaware on July 25, 1996, a copy of which is enclosed. Even in light of the opinion relating to Sussex County, our review of the facts and circumstances surrounding the Newark complaint lead us to conclude that no clarification of the January 2, 1996 opinion is required nor should the opinion be modified or withdrawn.
We believe the legislative intent is clear and that the General Assembly intended, by the enactment of FOIA and its subsequent amendments, to assure that no artificial rationales were employed to circumvent the specific requirements imposed on public bodies by FOIA. By specifically outlawing informal or ad hoc types of meetings where a quorum or more of the public body is in attendance (even if that occurs in a series of meetings), the General Assembly clearly intended that all public business that was to be discussed or acted upon be done so in a public manner as set forth in the Act. Irrespective of how one characterizes the conclusions reached in the January 2nd opinion, we are satisfied that, in the context of FOIA, it was proper to conclude that the scheduling of those meetings and the discussions which occurred thereat constituted public business and that the meetings were an artifice designed to avoid the FOIA requirements that public business be discussed in a public forum. Indeed, as you noted in your letter of July 25th, “[m]atters of mutual concern between the school and the City were discussed.” Unlike the Sussex County case, the clear import of your letter is that the discourse between the University and the City was not in the form of an informational presentation to Council subsequent to a public announcement of the time, date place and circumstance of the meeting, but that the meetings between the Council members and the University were more like working sessions of a public body. Clearly, the issues covered were virtually identical in all three meetings. It is our belief that FOIA does not require that, in circumstances similar to what occurred in Newark, ad hoc or informal committees have to be specifically designated or appointed in order to be such under the FOIA definition.
That being said, your concern about neighborhood meetings or invitations to members of a public body to speak in the community is well taken. It should first be assumed that no matter how many examples either of us might be able to describe, it would be virtually impossible to consider all possible types of circumstances under which a FOIA complaint might or might not be appropriate. Therefore any examples used or general statements made should not be considered to be exhaustive and any suggestions are merely advisory and do not bind the Department of Justice with respect to any future complaint.
The analysis must first start with the definition of public body set forth in Section 10001. That definition speaks for itself and is only crucial to your inquiry in the context of whether and under what circumstances a sub-part of the Council is established. The second crucial issue is whether the persons gathering constitute a quorum of the council or sub-part thereof and whether public business is being discussed. Meetings between one or more council members and citizens for purposes of local civic or service club meetings, election campaigns, debates, etc.(provided the public official(s) did not constitute a quorum of the Council or any committee thereof) would probably not fall within FOIA. On the other hand, two or more council members meeting with a specific interest group to discuss public business could very well fall within the Act, especially if the persons happen to be members of the same sub-committee or designated to investigate a particular issue. In that type of situation, one has to take care to evaluate the type of meeting being held and the definition of an ad hoc committee.
The Department of Justice has concluded that the General Assembly intended the Act to be liberally construed. Case decisions have confirmed the construct that the exceptions to the Act must be very narrowly drawn and that any questionable circumstance must be resolved in favor of the public’s right to know and have access to the meetings and records of public bodies. Accordingly, we find no basis upon which to modify our opinion of January 2nd. I will be happy to meet with you personally to discuss any legal issues you believe may be unresolved by the opinion and this letter.
Very truly yours,
Michael J. Rich
cc: Hon. M. Jane Brady
Keith R. Brady, Chief Deputy Attorney General
Malcolm S. Cobin, Assistant State Solicitor
W. Michael Tupman, Deputy Attorney General