Del. Op. Atty. Gen. 99-IB15 (Del.A.G.), 1999 WL 33100497
Office of the Attorney General
State of Delaware
Opinion No. 99–IB15
December 9, 1999
Re: Freedom of Information Act Complaint Against City of Newark
*1 Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Dear Mr. Porach:
Our Office received your Freedom of Information Act (“FOIA”) complaint on November 18, 1999. You allege that the City of Newark (“the City”) violated the open meeting requirements of FOIA by holding a meeting on November 17, 1999 to discus public business which was not open to the public. According to your complaint, those present at the meeting were several members of the City Planning Department, the Chairman of the City’s Parking Committee, and representatives of F.R. Harris, Inc., a private consultant.
By letter dated November 29, 1999, we asked the City to respond to your complaint within ten days. That same day, we received the City’s response (which had crossed in the mail with our letter).
The City denies that the meeting on November 17, 1999 was of a “steering committee” of the City Parking Committee. According to the City, the purpose of the meeting was to bring “officials of the City, the state and WILMAPCO” together to meet with representatives from “the selected engineering consultant [F.R. Harris] for the first time” to “review the letter of award with the consultants and to review their technical proposal in detail.” In addition to the Harris representatives, there were six persons present: Cathy Dennis, of the Delaware Transit Corporation; Arthur Amick, Chair of the Newark Parking Committee; Carol Houck, Assistant Administrator of the City; Maureen Feeney Roser, Assistant Planning Director and City Parking Manager; Roy Lopata, City Planning Director; and Heather Ehrlich of WILMAPCO.
FOIA requires that “[e]very meeting of all public bodies shall be open to the public” except those closed for executive session for a purpose authorized by law. 29 Del. C. Section 10004(a). The Act defines a “public body” to include any “committee, ad hoc committee, special committee, temporary committee, advisory board [or] subcommittee” of any public body. The legal questions here are: (1) whether this group of individuals from four different organizations amounted to a “public body” for purposes of FOIA; and (2) if not, whether the four representatives from the City who were present at that meeting constituted an “ad hoc committee” or “subcommittee” of the City.
We do not believe that this was 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. It is important to note that the City’s representatives were City employees, not members of the Council. As employees fulfilling the duties of their employment, they do not constitute an ad hoc committee or subcommittee of the City that would require a finding that they constitute a public body as that term is defined in 29 Del. C. § 10002.
*2 In The Advertiser Co. v. Wallis, Ala. Supr., 493 So.2d 1365 (1986), the Commissioner of Mental Health met with officials from other executive branch departments and union representatives to discuss contract negotiations to avert a strike. In an unrelated meeting, officials from the Alabama Medicaid Agency met with hospital officials to discuss a recent audit of expenditures. A local newspaper sued, claiming that both meetings should have been open to the public. The Alabama Supreme Court disagreed. “[W]e find that the entities to which the Sunshine Law applies are only those governed by a group of individuals who sit as a deliberative body to set policy regarding the public matters with which the entity is entrusted.” 493 So.2d at 1369. See also SJL of Montana Associates Ltd. Partnership v. City of Billings, Mont. Supr., 867 P.2d 1084 (1993) (FOIA did not apply to a meeting between a city engineer and the public safety works director with a contractor to discuss construction delays on a municipal street project).
That does not mean, however, that 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.
Nor does the presence of four City officials from the executive branch turn the meeting on November 17, 1999 into a “subcommittee” or “ad hoc committee” of the City. The courts in other states by and large have excluded from the scope of the open meeting laws meetings between executive officers and their subordinates. See, e.g., City of Sunrise v. News & Sentinel Co., Fla. App., 542 So.2d 1354 (1989) (meeting of mayor and city transportation director to discuss employee disciplinary matters); Cape Publications, Inc. v. City of Palm Bay, Fla. App., 473 So.2d 222 (1985) (meeting between city manager and personnel director to discuss criteria for recruitment of new chief of police). We find the underlying policy reasons persuasive. “Securing government accountability at the decisional level is one thing. Adversely affecting administrative efficiency at the non-decisional level is quite another thing. It is inconceivable that the salutary goal of letting the ‘sunshine’ in on meetings of ‘public governmental bodies’ envisioned the elimination of all intermediate layers of ozone to the extent of crippling or impeding the day-to-day efficiency of purely administrative functions.” Tribune Publishing Co. v. Curators of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983).
As the City points out, “any of the ‘work product’ generated as a result of the transit study project will be given a thorough public airing at meetings and/or workshops.” Moreover, the consultant “must present status reports on progress at public meetings.” The public, therefore, will have input and be involved before any decisions are made by the City to take actions affecting the public based on the consultant’s recommendations.
*3 For the foregoing reasons, we find that the City did not violate the open meeting requirements of FOIA by meeting with representatives from other organizations on November 17, 1999 to discuss the Harris consulting contract.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
 
Approved
 
Michael J. Rich
State Solicitor
Del. Op. Atty. Gen. 99-IB15 (Del.A.G.), 1999 WL 33100497

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