September 10, 2004
Civil Division-Kent County (739-7641)
Mr. Richard P. Alexander
207 Cobblecreek Curve
Newark, DE 19702
Re: Freedom of Information Act Complaint
Against Town of Cheswold
Dear Mr. Alexander:
Our Office received your Freedom of Information Act (“FOIA”) complaint on August 4, 2004 alleging that the Town of Cheswold (“the Town”) violated FOIA by barring you from a public meeting of the Town Council on August 2, 2004.
By letter dated August 9, 2004, we asked the Town to respond to your complaint within ten days. We received the Town’s response on August 19, 2004. By letter dated August 24, 2004, we asked the Town for the agenda and minutes of the August 2, 2004 Town Council meeting. We received the agenda on September 2, 2004, and the draft minutes on September 8, 2004.
According to the Town, “[s]everal weeks previous to [the August 2, 2004] meeting, Council had determined to terminate services of Mr. Alexander” and when notified of your termination you “refused to leave the Town Hall.” The Town Solicitor advised “the Mayor that if this continued the Town had a right to have Mr. Alexander arrested for trespass.” When “Mr. Alexander was advised to this effect he voluntarily left Town Hall.”
According to the Town, “Mr. Alexander appeared at the Council Meeting of August 2 for no aparent reason other than what the Mayor had determined to be a further intent to cause a scene and disrupt the meeting as had been his previous behavior which was only resolved by a threat of arrest.” The Mayor “prohibited Mr. Alexander from attending the meeting and asked him to leave the premises.”
The Town claims that FOIA authorized the Mayor to bar you and two other former police officers from the August 2, 2004 meeting based on anonymous comments posted on Internet sites “all being critical of the [recent] firing of [two police] officers, actions taken by Chief Vann, [and] actions of the Mayor and Town Council.” The Town acknowledges that “these comments cannot be traced,” but “it would obviously appear that they were either offered by Mr. Alexander or that the publication was induced by him.”
The Town provided us with print-outs of comments posted on the Newszap Community Blogs, Kent County alleging” (1) Police Chief Vann had accepted an illegal $500 gratuity from a real estate developer; and (2) after you and Officer Paul Shulli disclosed this to a member of the Council, the Mayor fired you and Shulli in violation of the Law-Enforcement Officer’s Bill of Rights. One “very concerned citizen” wrote in the blog: “I am planning on attending the Town meeting this Monday [August 2, 2004] and I am going to ask questions, let’s face it we have the right to know what happened to [the fired police officers] and to cast our opinion to the council, Mayor and Chief.”
The agenda for the August 2, 2004 meeting listed under the matters of public business for discussion, “Review of Police Report, followed by a discussion and changes (if any), motion for approval.” The draft minutes of the August 2, 2004 meeting (which are not very detailed) state that a “Police Report was given to the Council. Chief Vann introduced Elliot Rosario as a new recruit” and the Mayor “made a brief statement about the former police recruits.” According to an article published in the State News on August 2, 2004, “[d]uring the meeting, council announced the hiring of two new police officers, bringing the force back to five officers.”
Relevant Statutes
FOIA provides that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session as authorized by statute. 29 Del. C. §10004(a).
FOIA does “not prohibit the removal of any person from a public meeting who is willfully and seriously disruptive of the conduct of such meeting.” Id. §10004(d).
Legal Analysis
“FOIA entitles citizens to have notice and attend meetings of public bodies to watch the discussion of public business.” Att’y Gen. Op. 03-IB06 (rev. Feb. 11, 2003). A public body, however, “cannot derogate from FOIA by affording rights to a more restrictive group of citizens.” Id. For example, a public body cannot limit attendance at a public meeting to “the owners of property within a municipality.” Id. If a public body notices a meeting to the public, then it must try to accommodate every citizen who wants to attend the meeting, even if that means re-scheduling the meeting “to find another, larger place for the meeting.” Att’y Gen. Op. 02-IB09 (Apr. 12, 2002).
In Att’y Gen. Op. 03-IB06 we determined that the town council violated FOIA when it opened for public discussion a proposal to hire a temporary officer-in-charge of the police department, but then refused to hear from one of the town’s current police officers who felt he was more qualified to run the police department. We observed that “constitutional principles [of free speech] inhere in the definition of an ‘open meeting’ under Delaware’s FOIA when a public body allows for a period of public participation.”
We believe that the same First Amendment principles come into play when a public body denies some citizens — but not others — the right to attend a public meeting based on the anticipated content of their speech. When the state law requires meetings to be open to the public, they “are precisely the type of public proceeding to which the First Amendment guarantees a public right of access.” Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 181 (3rd Cir. 1999).
In Att’y Gen. Op. 03-IB06, we noted that under FOIA a “public body can impose reasonable time, place, and manner restrictions on public participation” and FOIA authorizes the removal of any citizen who seriously disrupts a meeting by violating those restrictions. But there was “no evidence in the record” in that earlier opinion that the citizen who was denied an opportunity to speak was so disruptive “as to prevent the Council from accomplishing its business in a reasonable manner.”
The Town contends that since FOIA permits a public body to remove a citizen who disrupts a meeting, it follows that FOIA also permits a public body to exclude a citizen from attending the meeting if it believes that the citizen may be disruptive. We disagree.
FOIA permits a public body to remove a “person from a public meeting who is willfully and seriously disruptive of the conduct of such meeting.” 29 Del. C. §10004(d). The statute is phrased in the present tense (“is”) and, on its face, does not authorize removal if the public body believes a person might disrupt the meeting.
Like the disorderly conduct laws, the removal provisions in the state open meeting laws only survive constitutional scrutiny by narrowing their application so as not to punish a person for the content of his or her speech. Delaware’s FOIA does this is two ways: first, by requiring a specific intent (“willfully”) to interfere with the orderly course of government business; and second, by requiring that the offender’s speech be “seriously disruptive” of the conduct of a public meeting. When those criteria are established, a public body can remove a citizen from a meeting for disorderly conduct, not for the content of his or her speech, but rather for “interfer[ing] with the right of others to hear and be heard.” State v. Smith, N.J. Supr., 218 A.2d 147, 150, cert. denied, 385 U.S. 838 (1966). See District of Columbia v. Gueory, D.C.App., 376 A.2d 834, (1977) (removal statute must be “narrowed to actions commenced with specific intent of causing disruption, and it is narrowed in time, place, and manner to disruptive conduct occurring within government buildings when meetings are occurring and daily business is being transacted.”).
If FOIA permitted a public body to bar a citizen from attending a public meeting because the public body feared he or she might disrupt the meeting, the statute would be an unconstitutional prior restraint. We must try to interpret the removal statute in a way that makes it constitutional. Accordingly, we believe that Delaware’s FOIA permits removal of a citizen from a public meeting only for disruptions “which cause a lawful assemblage to terminate in an untimely manner” or “which substantially impair the conduct of the assemblage.” State v. Schwing, Ohio Supr., 328 N.E.2d 379, 386 (1975). Any lesser standard would render the removal provision of FOIA unconstitutionally overbroad in violation of the First Amendment.
In City of Madison v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976), the employment relations commission ordered a school board to cease and desist allowing teachers to speak at public meetings of the board about matters subject to collective bargaining. The state supreme court upheld the abridgement of free speech because of the “clear and present danger” that allowing the teachers to speak would undermine the bargaining exclusivity guaranteed to the teachers union. The U.S. Supreme Court reversed. “Assuming, arguendo, that such a ‘danger’ might in some circumstances justify some limitation of First Amendment rights, we are unable to read this record as presenting such danger as would justify curtailing speech.” 429 U.S. at 174.
The school board meeting “was open to the public. . . . Where the State has opened a forum for direct citizen involvement, it is difficult to find justification for excluding” any citizen. 429 U.S. at 175. “The challenged portion of the [cease and desist order] is designed to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint.” Id. at 177. “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Police Department of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
The record does not support a finding that you posed such a “danger” to the orderly conduct of the Town meeting on August 2, 2004 as to justify a prior restraint on your attending. There is nothing in the Internet “blogs” which you provided to us to suggest that any of the anonymous citizens criticizing the Mayor and the Police Chief intended to commit any crime or seriously disrupt the August 2, 2004 Town Council meeting by disorderly conduct. Rather, the decision to bar you and two other former police officers from attending the meeting appears to have been based on the anticipated content your speech. To bar some citizens from attending a public meeting is an attempt “to govern speech and conduct in the future, not to punish past conduct, and as such it is the essence of prior restraint.” City of Madison, 429 U.S. at 177.
There is nothing in the record to show that you had seriously disrupted a public meeting of the Town Council in the past. The Town alleges that you may have committed criminal trespass when you refused to leave the Town Hall after being notified of your termination, but that was not in the context of a meeting open to the public under FOIA. A citizen cannot commit trespass by attending “a meeting that was a public meeting.” Holland v. Sebunya, Maine Supr., 759 A.2d 205, 213 (2000).
To overcome the First Amendment, a substantial degree of disruption is required to remove a citizen during a public meeting. See, e.g., Saraceni v. City of Roseville, Cal. App., 2003 WL 2136458, at p.5 (June 13, 2003) (plaintiff tried “to hijack the council meeting. Plaintiff refused to take his seat, despite repeated requests from the mayor and council members. He obstinately stood at the podium, [and] interrupted proceedings . . . Plaintiff’s obstreperous behavior prevented the council from meeting as scheduled.”). We cannot read Delaware’s FOIA to authorize a public body to bar a citizen from attending in the first place just because the public body believes the citizen might become disruptive. “[F]ear or apprehension of disturbance is not enough to overcome the right of freedom of expression.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508 (1969).
A public body is not without a remedy to protect the public safety when it has good reason to believe that a citizen might do harm to persons or property at a public meeting (for example, based on a previous history of disruption or actual threats). If the public body can show an imminent threat of irreparable harm, then it can apply to the courts for a restraining order. Short of prior judicial intervention, we do not believe that FOIA authorizes a public body to bar a citizen from attending a public meeting based merely on its belief that a citizen might be disorderly.
To remediate this FOIA violation, we direct the Town to notice a special meeting within thirty (30) days of the date of this letter to discuss anew the matters discussed at the Council meeting on August 2, 2004 relating to the recent termination of police officers and/or the hiring of new police officers. The Town must notice the special meeting in full compliance with FOIA, and comply with FOIA with regard to public attendance and participation. To the extent that the Town Council voted or took other official action at the August 2, 2004 meeting regarding police officers, then the Town must vote on those matters again. We direct the Town Solicitor to respond to us in writing within ten (10) days after the Town has completed remediation.
Conclusion
For the foregoing reasons, we determine that the Town violated the open meeting requirements of FOIA when it prevented you from attending a public meeting of the Town Council on August 2, 2004. To remediate this FOIA violation, we direct the Town to notice a special meeting within thirty (30) days of the date of this letter to discuss anew the matters discussed at the Council meeting on August 2, 2004 relating to the recent termination of police officers and/or the hiring of new police officers. The Town must notice the special meeting in full compliance with FOIA, and comply with FOIA with regard to public attendance and participation.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Lawrence W. Lewis, Esquire
Deputy Attorney General
Nicholas H. Rodriguez, Esquire
Phillip G. Johnson
Opinion Coordinator

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