November 24, 1997
New Castle County – Civil Division
Jeffrey M. Weiner, Esquire
1332 King Street
Wilmington, DE 19801
RE: Freedom of Information Act Complaint
Against City of Wilmington
Dear Mr. Weiner:
This letter is our written determination in response to your
complaint alleging that the City of Wilmington (the “City”)
violated the Freedom of Information Act, 29 Del. C. Sections
10001-10005 (“FOIA”).
Your letter of complaint dated October 4, 1997 was received by
this Office on October 8, 1997. By letter dated October 9, 1997,
we asked for the City’s response within ten days to your
allegations that the City had violated the open meeting
requirements of FOIA. By letter dated October 17, 1997, the City
asked for a five-day extension of time, which we granted.
In your letter, you alleged that the City had violated FOIA in
two ways: first, by holding meetings of the Residency Review
Board without notice to the public; and second, by failing to
maintain minutes of those meetings.
By letter dated October 24, 1997, we received a response from the
City Solicitor. By letter dated October 28, 1997, we asked the
City for additional information and documents relating to the
FOIA complaint. By letter dated October 30, 1997, the City
provided us with that information. The City confirmed that the
first meeting of the Residency Review Board was held on December
23, 1996. The City also stated “that public notice of the
meetings and agenda were not posted for the five meetings of the
Board.”
Summary of the Law
Section 10004 of Title 29 of the Delaware Code provides that
“[e]very meeting of all public bodies shall be open to the
public” except as authorized by statute for executive session. A
“public body” is defined to include any “board, commission,
department, agency, committee, ad hoc committee, special
committee, temporary committee, advisory board and committee,
[or] subcommittee” appointed by any body which is “impliedly or
specifically charged” by another public body “to advise or to
make reports, investigations or recommendations.” 29 Del. C.
Section 10002(a).
Section 10004(e)(2) provides: “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; . . . .” Section 10004(e)(4) requires that
notice “shall include, but not be limited to, conspicuous posting
of said notice at the principal place of the public body holding
the meeting, . . . .”
Section 10004(f) requires every public body to “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.”
The City does not dispute that the Residency Review Board is a
“public body” for purposes of FOIA. The Board was appointed by a
public body (the City Council) to oversee the administration and
enforcement of the law requiring City employees to be Wilmington
residents.
Discussion and Findings
On March 2, 1995, the City Council enacted an ordinance to amend
Chapter 2 of the City Code of 1993 to create a Residency Review
Board “to review any matters of residency requirement
administration and enforcement that may arise.” The Residency
Review Board consists of the City Solicitor, the Director of
Personnel, and Administrative Assistant to the Mayor, and two
residents of the City “who shall not be City employees, who shall
be qualified electors of the City and who shall be appointed by
the Mayor” and “confirmed by resolution approved by a majority of
all members of Council.”
The City Council did not approve the appointments of all of the
members of the Residency Review Board until August 15, 1996. The
Board held its first meeting on December 23, 1996. Subsequent
meetings were held on January 14, March 6, May 13, and September
9, 1997.
In its response to your FOIA complaint, the City provided us with
copies of the minutes for those five meetings of the Residency
Review Board. Your concern that the City violated FOIA by failing
“to maintain minutes of all meetings” therefore is unfounded.
The City has confirmed “that public notice of the meetings and
agenda were not posted for the five meetings and notified Board
members.” The City contends, however, that “regarding the five
meetings in question, no policies and procedures were adopted,
and no individual case was discussed or decided. Therefore, while
there may have been an unintentional failure to provide public
notice in the past, to date no formal action has been taken by
the Board.”
The Chancery Court has rejected the notion that the open meetings
requirements of FOIA apply only “to meetings where ‘formal
action’ was taken. Our law is not so limited. Rather it applies
to meetings called to discuss public business as well as to
meetings called to take action on public business.” The
News-Journal Co. v. McLaughlin, Del. Ch., 377 A.2d 358, 362
(1977) (Brown, V.C.). This is because the purpose of the
“sunshine laws is to prevent at nonpublic meetings the
crystallization of secret decisions to a point just short of
ceremonial acceptance, that rarely could there be any purpose to
a nonpublic pre-meeting conference except to conduct some part of
the decisional process behind closed doors, and that a sunshine
statute, being for the benefit of the public, should be construed
so as to frustrate all such evasive devices.” Id.
Clearly, the Residency Review Board discussed matters of public
business at its five meetings. Among other things, the Board
discussed: the legal definition of “residency”; the need for more
vigorous enforcement; current problem situations; the criteria
for determining whether a City employee is a resident; procedures
for determining the residency of current and new City employees;
and actual steps to enforce the residency requirement. The City
residency requirement is a matter of widespread public concern.
In fact, a bill to abolish the residency requirement was
introduced, but not passed, in the last session of the General
Assembly. Despite a keen public interest in this issue, the City
did not give the public any notice that the Board was meeting,
and thus give the public an opportunity to attend the meetings
and participate in the political process.
It is irrelevant whether the Board has yet to take any “formal”
action concerning the application and enforcement of the
residency law. 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 held that FOIA applied to
school board “workshops,” even where no formal action was taken.
Under any other interpretation, “there would be no remedy to
deter Board members from privately meeting for discussion,
investigation or deliberation about public business as long as
the Board reached no formal decision at that private meeting.”
1990 WL 15417, at p. 6. FOIA “recognizes that policy decisions by
public entities cannot realistically be understood as isolated
instances of collective choice, but are best understood as a
decisional process based on inquiry, deliberation and consensus
building. Because informal gatherings or workshops are part of
the decision-making process they too must be conducted openly.”
Id.
We find that the City violated the open meeting requirements of
FOIA by failing to post notices and agenda for the five meetings
of the Residency Review Board. The City Council has charged the
Board with an important function: to set the standards and create
procedures for enforcement of the City’s residency law, and to
make final decisions regarding the administration and enforcement
of the requirements of that law. The Board’s activities therefore
could have considerable impact on individual City employees.
Failure to post notices and agenda before the Board’s meetings
involved “substantial public rights” and was not merely a
“technical” violation. Ianni v. Department of Elections of New
Castle County, Del. Ch., 1986 WL 9610, at p. 6 (Aug. 29, 1986)
(Allen, C.). To remedy these violations of the open meeting law,
we direct the Residency Review Board to notice a special meeting
within thirty days of the date of this letter. At that special
meeting, the Board should discuss, at least in summary form, the
principal matters discussed at its previous five meetings, and to
give proper notice of that special meeting to the public so that
interested citizens can attend and comment. At that time, after
“full public discussion,” Beebe Medical Center v. Certificate of
Need Appeals Board, Del. Super., 1995 WL 465318, at p. 6 (June
30, 1995) (Terry, J.), the Board can publicly vote to adopt or
ratify any actions previously taken.
The City is put on notice that the open meeting requirements of
FOIA will be strictly construed and enforced by this Office. Any
future failure by the Residency Review Board to comply with FOIA
could be determined to be evidence of a wilful pattern of FOIA
violations.
Conclusion
Based on the complaint, the City’s written responses, and the
documents and other information provided to us, we determine that
the City’s Residency Review Board violated the open meeting
requirements of FOIA by failing to post notices and agenda for
five of its meetings. We determine that the Board maintained
minutes of each of those meetings, and therefore did not violate
Section 10004(f) of FOIA. The City is directed to take the
remedial steps outlined above.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Approved:
____________________
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Keith R. Brady, Esquire
Chief Deputy Attorney General
Jeffrey M. Weiner, Esquire
Chrystyna Lafferty
Opinion Coordinator

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