Delaware Department of Justice
Attorney General
Kathy Jennings

12-IB07: RE Freedom of Information Act African American Heritage Center

2012 WL 1680116 (Del.A.G.)
Office of the Attorney General
State of Delaware
Opinion No. 12-IIB07
May 4, 2012
*1 Dr. James H. Sills, Jr.
African American Heritage
Center of Delaware
900 North Pine Street
Suite One
Wilmington, Delaware 19801
We received from you three letters dated February 10th, March 5th and April 14th complaining of certain acts and omissions of the Office of the Mayor of Wilmington in connection with the award of a grant of money to establish and operate an African American Heritage Center. We have reviewed the allegations in your letters and accompanying materials. We have also reviewed correspondence between your organization and the Wilmington City Solicitor’s Office and we reviewed the public records made available to your organization for inspection and copying.
We have treated your letters, taken together, as a petition for a determination by us pursuant to 29 Del. C., § 10005 as to whether the Freedom of Information Act, 29 Del. C. ch. 100 (“FOIA”) has been violated. Here, as we do with other such petitions, before we made our determination, we requested that the City Solicitor respond to your allegations related to the FOIA—and only to those allegations. As we explain below, we have no jurisdiction over your organization’s dispute with the City of Wilmington relating to a grant of funds and, hence, no interest in the issues or merits of that dispute.
Your allegations against the City fall into two distinct categories: (1) allegations of legal and ethical improprieties relating to the solicitation of proposals and the award of a grant of money, and (2) allegations of the violation of the Freedom of Information Act, 29 Del. C. ch. 100 (“FOIA”). And your FOIA allegations concern both the failure of the City of Wilmington to disclose certain public records your organization has requested pursuant to 29 Del. C. § 10003 and the failure of the Mayor’s office to comply with the Open Meetings provisions of FOIA, 29 Del. C. § 10004.
First, as to the solicitation and awarding of grants of money by the government of the City of Wilmington, the grant funds at issue were approved by Wilmington City Council and signed into law by the Mayor as Ordinance No. 07-013 on April 20, 2007. Those funds are allocated to the Office of the Mayor under the heading “African American Museum/Heritage Center” at page 17, item G. 1 of the Ordinance. The bidding of contracts and the award of money grants by City of Wilmington (or any other municipality) are issues over which the Attorney General has no lawful jurisdiction, unless there is evidence of malfeasance amounting to criminal misconduct. We have reviewed carefully your statements concerning the conduct of the City’s personnel, and we find nothing that implicates criminal misconduct and you have suggested none. Therefore, we decline to expend our scarce resources investigating these allegations outside our jurisdiction, despite your repeated demands that we do so.
*2 Second, we have reviewed the City’s responses to your organization’s request for records submitted by its Executive Director, Harmon R. Carey. We are satisfied that the City conducted a diligent search for the records requested and made all existing records available for inspection and copying. Where records requested either do not exist or could not be found after a diligent search, you have been so advised. Accordingly, we have determined that the City of Wilmington is in compliance with FOIA with respect to your organization’s public records request.
Third, you complain that, while a meeting your organization had with the Mayor’s staff was open to your competing grant applicant, their meeting with staff was closed to you. You allege that excluding your organization from the Mayor’s staff’s meeting with your competitor violated the Open Meeting provisions of FOIA. This FOIA allegation has merit only if those meetings were required to be held pursuant to its Open Meeting requirements, set forth in 29 Del. C. § 10004.
The open meetings requirements of FOIA require public notice of and public access to meetings held by public bodies that consist of two or more decisionmaking/voting “members”. Moreover, there is a requirement that a quorum of those “members” be present in order to hold a meeting to discuss, vote on, or otherwise conduct public business. While staff are routinely employed by these bodies, they are not decisionmaking “members” under the open meeting requirements of FOIA. Just as staff are not counted when determining whether a quorum of members of the body has been met in order to hold a meeting governed by FOIA, meetings held by staff are not open meetings governed by FOIA.
The open meeting requirements of FOIA, at 29 Del. C. § 10004 subsection (h)(6), specifically excludes public bodies with one executive decisionmaking/voting “member,” such as the Governor’s Office or a Mayor’s Office. In this case, all of the authority of the office of the Mayor of Wilmington rests with one person — one decisionmaking “member” — the Mayor himself. Unlike leaders of public bodies whose collective decisions are made by its members, the Mayor is never required to have any of his staff approve decisions that he alone has the authority to make, nor is he ever required to discuss his decisions with any of them. Accordingly, we conclude that the Office of the Wilmington Mayor is exempt from the public meeting requirements of FOIA under 29 Del. C. § 10004 subsection (h)(6).
We reiterate: (1) the Attorney General has no jurisdiction over your organization’s dispute with the City of Wilmington regarding any grant for an African American Museum/Heritage Center and we decline to investigate or otherwise become involved; (2) the Attorney General is satisfied that your organization’s request for public records has been fully met; and (3) your complaint concerning meetings with the Office of the Mayor has no merit because the Mayor’s Office is not subject to the Open Meetings requirements of FOIA.
Yours truly,
*3 Ralph K. Durstein, III
Deputy Attorney General
Lawrence W. Lewis
State Solicitor
2012 WL 1680116 (Del.A.G.)

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