Del. Op. Atty. Gen. 03-IB11 (Del.A.G.), 2003 WL 21431171
Office of the Attorney General
State of Delaware
Opinion No. 03–IB11
May 19, 2003
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 July 29, 2002. You allege that a committee of the City of Newark (“the City”) violated FOIA by meeting via an exchange of e-mails without notice to the public or an opportunity for the public to participate.
By letter dated July 30, 2002, we asked the City to respond to your complaint. We received that response on August 13, 2002. According to the City, it established a Downtown Newark Partnership (“Downtown Partnership”) to advise the City Council on economic improvement of downtown Newark. The Mayor and City Council appoint the members of the Downtown Partnership.
The Downtown Partnership has formed several committees, including an Ad Hoc Nominating Committee (“Nominating Committee”). The members of the Nominating Committee are Dr. David Roselle, President of the University of Delaware; Ronald Gardner, former mayor of the City; and Carl Luft, City Manager. The Newark Planning Department provides administrative support to the Downtown Partnership and its committees. Maureen Roser, City Assistant Planning Director, provides the primary administrative support to the Nominating Committee.
The Nominating Committee noticed a public meeting for March 12, 2002. The agenda stated that the committee “will meet to discuss and recommend members for Downtown Newark Partnership working committees. The recommendations from the meeting will be discussed at the regularly scheduled Downtown Newark Partnership Board meeting on March 14, 2002.”
According to the City, the March 12, 2002 meeting of the Nominating Committee was canceled at the last minute because of a personal obligation of Ms. Roser. The City goes on to say: “On March 13, 2002, Ms. Roser sent an e-mail to the Nominating Committee members. Accompanying the e-mail was a written report that she would have presented to the Committee had it met on March 12, 2002…. Ms. Roser’s e-mail to the [Nominating] Committee members engendered certain responses or reactions with regard to her proposals or suggestions for various committees…. After receiving input of the Committee members, Ms. Roser prepared a revised report.”
The Downtown Partnership canceled its March 14, 2002 meeting for lack of a quorum. The Downtown Partnership next met on May 9, 2002. Listed on the agenda for that meeting was “2002 Ad Hoc Nominating Committee Report.” The minutes of the meeting show that the Downtown Partnership voted to approve the Nominating Committee’s recommendations for the design, special events, and merchants committees.
We find, as a matter of first impression in this State, that a meeting can occur electronically, and that the Nominating Committee violated FOIA. We also find, however, that no remediation is necessary because the nominations were properly noticed for the May 9, 2002 meeting, and the Downtown Partnership took action only after the opportunity for public discussion.
 
Relevant Statutes
 
*2 FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those” authorized by statute for executive session. 29 Del. C. § 10004(a). A “‘meeting’ means the formal or informal gathering of a quorum of the members of a public body for the purpose of discussing or taking action on public business.” Id. § 10002(e). “‘Public business’ means any matter over which a public body has supervision, control, jurisdiction or advisory power.” Id. § 10002(b).
The City does not dispute that the Downtown Partnership and the Nominating Committee are each “public bodies” subject to FOIA. Nor does the City dispute that discussion of the nominees for the City’s design, special events, and merchants committees is a matter of “public business” for purposes of FOIA. The only issue presented is whether the exchange of e-mails between the Assistant Planning Director and the three members of the Nominating Committee constituted a “meeting” under FOIA.1
 
Legal Authorities
 
In Wood v. Battle Ground School District, Wash. App., 27 P.3d 1208 (2001), the five members of a school board exchanged a series of e-mails about the job performance of a school administrator. On November 30, 2000, one of the board members (Sharp) sent an e-mail to all board members on the subject, and another e-mail to three members. On December 3, 200, Sharp again e-mailed all the board members, attaching a response he had received from another board member to Sharp’s first e-mail. On December 3, 2000, another board member (Kim) e-mailed Sharp and copied three board members in response to Sharp’s previous e-mail. On December 5, 2000, Sharp again responded to all of the board members by e-mail.
The Washington Court of Appeals held that this series of e-mails constituted a “meeting” under that state’s open meeting law. “Elected officials no longer conduct the public’s business solely at in-person meetings. ” Wood, 27 P.3d at 1216. “Admittedly, unlike Washington, some states have explicitly addressed the use of electronic or other technological means of evading [the open meeting] laws.” Id.2 Washington’s statute defines a “meeting” as “the transaction of official business by a governing body including, but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions.” Wash.Rev.Code § 42.30.020(3). Under this broad definition, the court held that a “meeting” could include an exchange of e-mails, even without an express statutory provision.
In doing so, we also recognize the need for balance between the right of the public to have its business conducted in the open and the need for members of governing bodies to obtain information and communicate in order to function effectively. Thus, we emphasize that the mere use or passive receipt of e-mail does not automatically constitute a “meeting.” 27 P.3d at 1217. The open meeting law “is not implicated when members receive information about upcoming issues or communicate among themselves about matters unrelated to the governing body’s business via e-mail.” Id. The law is triggered only when the members of a public body “communicate about issues that may or will come before the Board for a vote.” Id.
*3 Applying these criteria, the Washington Court of Appeals found that the exchange of e-mails amounted to a meeting required to be open to the public. First, the “e-mail discussions involved a quorum of the five-member Board”; second, “these discussions related to Board business,” including the possibility of firing a school administrator and restructuring the duties of his position; and third, “the active exchange of information and opinions in these e-mails, as opposed to the mere passive receipt of information, suggests a collective intent to deliberate and/or discuss Board business.” 27 P.3d at 1217-18.
In Del Papa v. Board of Regents of the University & Community College System, Nev. Supr., 956 P.2d 770, 778 (1998), one of the members of the Board of Regents (Price) made critical comments in public about other regents. The Board chairman asked the university’s public information officer to draft a media advisory to respond to the criticism. The public information officer faxed a copy of the draft advisory to each of the Board members (except Price), asking for feedback on the draft. The members of the Board telephoned their comments to the public information officer. A majority of the Board were against the media advisory, so it never went out.
The Nevada Attorney General sued the Board for violating the state open meeting law. The law defines a “meeting” as “the gathering of members of a public body at which a quorum is present to deliberate toward a decision or to make a decision on any matter over which the public body has supervision, control, jurisdiction or advisory power.” Nev.Rev.Stat. § 241.015(2). The Board of Regents argued that no meeting took place because there was no single gathering of a quorum of the board. The Nevada Supreme Court rejected that argument, believing that the legislature “intended to prohibit public bodies from making decisions via serial electronic communications.” 956 P.2d at 777. “[W]e hold that a quorum of a public body using serial electronic communication to deliberate toward a decision or to make a decision on any matter over which the public body has supervision, control, jurisdiction, or advisory power violates the Open Meeting Law.” Id.
Historically, the term “gathering” in Delaware’s FOIA has connoted a physical coming together of the members of a public body at one place and time. But “with the technology presently available, a group of persons may come together by ‘non-corporal’ means as well.” Freedom Oil Co. v. Illinois Pollution Control Board, Ill. App., 655 N.E.2d 1184, 1190 (1995). A gathering of the members of a public body “can be realized through virtual as well as actual means” and in “this digital age, we recognize that meetings may be held in ways that were not contemplated when the [open meeting law] was initially drafted.” Claxton Enterprises v. Evans County Board of Commissioners, Ga. App., 549 S.E.2d 830, 835 (2001).
The City argues that FOIA applies only to electronic communications among the members of a public body in “real time,” such as instant messaging, or are in a chat room, where the communications are similar to a telephone conference call. In light of FOIA’s broad remedial purpose, we conclude that a “meeting” can occur even without a simultaneous exchange of viewpoints. This conclusion is consistent with our previous opinions that serial communications by telephone between members of a public body may be in violation of FOIA. See Att’y Gen. Op. 97-IB03 (Feb. 27, 1997) (superintendent telephoned individual school board members for their thoughts on a list of recommended new hires; the phone calls “amounted to a consensus vote on the recommendations”). All three members of the Nominating Committee were involved in the exchange of e-mails, and their exchange of views resulted in a consensus on who to nominate for the design, special events, and merchants committees.
*4 We distinguish Tryon v. Brandywine School District Board of Education, Del. Ch., Civ.A. No. 11161 (Apr. 20, 1990) (Hartnett, V.C.), where the President of the School Board called individual members on the telephone to see if they were prepared to vote on a student assignment plan at the next meeting of the School Board. The Chancery Court held that the serial phone calls did not amount to a meeting of the School Board because all of the conversations were one-on-one, and the President did not try “to convince any Board member to adopt a particular point of view.” His only purpose was to see if the Board members “would be ready to vote at the Board meeting scheduled for September 25, 1989.”
Serial e-mails allow each member of a public body to receive and comment on other member’s opinions and thoughts, and reach a consensus on action to take. We believe that under FOIA this can amount to a meeting of the public body, and that the open meeting law does not only apply to a physical gathering in a single place and time. Otherwise, the public would not have the opportunity to monitor and observe the discussion of public business if the discussion takes place by way of the telephone, e-mails, or other electronic communications. “The personal contact that is so often an effective ingredient of a meeting is absent… Not only the ‘right-to-know’ is protected by statute, but also the right to be present, to be heard, and to participate.” State v. Vermont Emergency Board, Vt. Supr., 394 A.2d 1360, 1361 (1978).
Based on the factual record, we find that the Nominating Committee held a meeting subject to FOIA in an exchange of e-mails over the course of two days. At 3:56 p.m. on March 13, 2002, the Assistant Planning Director sent an e-mail to all three members of the Nominating Committee stating “that it will be impossible to schedule another meeting before tomorrow night’s Board meeting, but I thought perhaps we could make some progress via e-mail so that we can move forward with some, if not all, of the [Committee’s] recommendations. To this end, I have prepared the attached memo regarding expiring terms and recommendations for yesterday’s meeting, and then added staff comments I would have made at the meeting in italics by committee – Design, Special Events, and the new Merchants’ committee.”
Dr. Roselle responded with his comments in an e-mail sent at 4:33 p.m. on March 13, 2002. Mr. Luft responded with his suggestions in an e-mail to the Assistant Planning Director sent at 4:33 p.m. on March 13, 2002. Mr. Luft copied his e-mail to the two other members of the Nominating Committee (Dr. Roselle and Mr. Gardner).
Mr. Gardner responded with his thoughts in an e-mail sent to the Assistant Planning Director at 11:26 a.m. on March 14, 2002. The Assistant Planning Director sent an e-mail to all three members of the Nominating Committee at 3:06 p.m. on March 14, 2002 thanking them “for your help and suggestions for committee appointments. I now have a slate of individuals for each committee to present tonight, with your approval…. With your approval of these additions, I can present the attached report to the Board at tonight’s meeting.”
*5 At 3:28 p.m. on March 14, 2002, the Assistant Planning Director sent an e-mail back to Mr. Luft recommending some additional nominees for the various committees. The Assistant Planning Director sent the same e-mail to Dr. Roselle at 5:18 p.m. on March 14, 2002.
When the Downtown Partnership next met on May 9, 2002, it voted to accept all of the Nominating Committee’s recommendations to fill the vacancies on the design, special events, and merchants committees.
These exchanges of e-mails involved all three members of the Nominating Committee. The discussions were about public business — the nominees for City’s design, special events, and merchants committees. And there was an “active exchange of information and opinions in these e-mails, as opposed to the mere passive receipt of information.” Wood, 956 P.2d at 1218.3 We find that these exchanges of e-mails constituted a meeting for purposes of FOIA.
Unlike some states, Delaware has not amended the open meeting law to authorize public bodies to meet electronically. We recognize that there may be public policy arguments in favor of giving citizens enhanced opportunity to observe their government in action through new technologies. See Babac v. Pennsylvania Milk MarketingBoard, Pa. Supr., 613 A.2d 551, 553 (1992) (via speakerphone, “all those present at the meeting are able to hear the comments of and speak to such absent members contemporaneously”). If public bodies believe so, we encourage them to go to the General Assembly for a legislative change.
 
Conclusion
 
For the foregoing reasons, we determine that the City’s Nominating Committee violated the open meeting requirements of FOIA when, in an exchange of e-mails over the course of March 13-14, 2002, the Committee discussed public business without notice to the public and without an opportunity for the public to observe. We do not believe that any remediation is necessary because the Nominating Committee’s report and recommendations were noticed to the public for a meeting of the Downtown Partnership on May 9, 2002, where the Partnership approved the nominees after an opportunity for public discussion.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
 
Approved:
 
Keith R. Brady, Esquire
Assistant State Solicitor

Footnotes
1	This is an important issue of first impression for our Office with broad ramifications for the application of the open meeting law. For that reason, it has taken longer than our normal case processing time to analyze the facts and the law that is only beginning to develop in this area.
2	See, e,g,, Col.Rev.Stat. § 24-6-402(1)(h) (“meeting” defined to mean “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by any other means of communication”); Iowa Code Ann. § 21.2(2) (defines a “meeting” as “a gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties”).
3	We do not think it makes any difference whether the discussion of public business was facilitated by the Assistant Planning Director Nominating Committee. See Del Papa, supra (the university’s public information officer drafted the media advisory after receiving the comments of the members of the board of regents).

 
Del. Op. Atty. Gen. 03-IB11 (Del.A.G.), 2003 WL 21431171

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