Delaware Department of Justice
Attorney General
Kathy Jennings

02-IB09: FOIA/Middletown

Civil Division- Kent County April 4, 2002    02-IB09
Richard L. Abbott, Esquire
The Bayard Firm
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE 19899
Re: Freedom of Information Act/Middletown
Dear Mr. Abbott:
On March 4, 2002, our Office received your letter alleging that the Town of Middletown (“the Town”) violated the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by denying citizens reasonable access to meetings to discuss a proposed WalMart site plan. You believe that the accommodations are inadequate because past meetings to discuss the proposed WalMart store “have drawn in excess of one hundred (100) members of the public” many of whom are members of Citizens Against Route 299 Expansion. You asked the Town to hold any future meetings at the Middletown High School auditorium, which can accommodate more people than the council chambers.
By letter dated March 8, 2002, we asked for the Town’s response, which we received that same day. According to the Town, state fire prevention regulations limit the number of people in the Town council chambers to 49 if there is only one exit. To accommodate up to 107 people, the Town installed a second exit. The Town further states that “there is an adjoining office, accessible through a short hallway, which will accommodate several dozen more individuals, and into which a speaker system has been installed.”
In your letter, you asked our Office either to commence enforcement proceedings, or “for an opinion on the issue of whether the holding of public meetings by public bodies in facilities that are known to be insufficient in size to handle the reasonably anticipated number of members of the general public who are likely to attend are actually meetings which are ‘open to the public'” under FOIA. We decline to take any enforcement action because we do not view your letter as a complaint under Section 10005 of FOIA. In order to consider whether enforcement action is warranted, we would need to have specific facts regarding a particular meeting (date, time and place) of the Town Council at which citizens (by name or number) were turned away or unable to participate in the discussion of public business. However, because of the importance to the community of the issues you raise, and because similar circumstances are likely to reoccur, we will view your complaint as a complaint of a violation “about to occur.” 29 Del. C. § 10005(e).
Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for an authorized executive session. 29 Del. C. § 10004(a).
Legal Analysis
In 1996, a citizen complained that the Sussex County Planning and Zoning Board met to discuss land use issues, but the council chambers where the meetings were held could not always accommodate all of the members of a citizens group, Hudson Pond Preservation Society. We observed that “‘[w]hen 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.'” Att’y Gen. Op. 96-IB23 (June 20, 1996) (quoting State ex rel. Badke v. Village of Greendale, Wis. Supr., 494 N.W.2d 408, 420 (1993)). We did not find a violation of FOIA in that case because the record showed that the county changed “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.” Id.
In Gutierrez v. City of Albuquerque, N.M. Supr., 631 P.2d 304 (1981), the city council met in chambers to consider a controversial license for a liquor store. The chambers could hold only 156 persons, and an overflow crowd arrived early to attend the meeting. Loudspeakers were set up outside the chambers to allow the citizens who could not get in to listen. Any citizen who registered with the council was able to enter the chambers at a designated time to present his or her views. The New Mexico Supreme Court held that the meeting was sufficiently open to the public.
The meeting was held in a hall designed to accommodate a large number of spectators. When the size of the crowd exceeded the capacity of the hall, every effort was made to allow those who could not gain entrance to listen to the proceedings. The City Council even went beyond the requirements of the Open Meetings Act and allowed members of the public to address the Council and present their views for over two hours. A meeting could hardly be more open or more public.
631 P.2d at 307.
The Town has installed a speaker system in the room adjacent to the council chambers, and the Mayor has represented “that should an occasion arise where individuals wishing to participate in the hearing want to be heard, they would be afforded that opportunity prior to the meeting adjourning. That individual merely has to notify Council of his or her wish to be heard.” We think those accommodations allow for adequate public access in the event of an unanticipated overflow of citizens who want to attend a meeting.
As a general rule, we do not think that speaker systems satisfy the open meeting requirements of FOIA if an overflow of citizens can reasonably be anticipated. “The personal contact that is so often an effective ingredient of a meeting is absent” if citizens can only listen to a meeting at another location State v. Vermont Emergency Board, Vt. Supr., 394 A.2d 1360, 1361 (1978). “Not only the ‘right-to-know’ is protected by the statute, but also the right to be present, to be heard, and to participate.” Id.
We conclude that if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting. Alternatively, in the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Robert E. Daley, Esquire
Phillip G. Johnson, Opinion Coordinator

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