Delaware Department of Justice
Attorney General
Kathy Jennings

13-IB04 09/27/13 FOIA Opinion Letter to Mr. Richard H. Morse, Esq. re: FOIA Complaint Concerning DNREC, Division of Air Quality Hearing

Attorney General Opinion No. 13-IB04
September 27, 2013
Richard H. Morse, Esq. Legal Director American Civil Liberties Union Foundation of Delaware 100 W. 10th St., Suite 603 Wilmington, DE  19801
Dear Mr. Morse:
By petition dated June 24, 2013, you asked this Office to determine whether the Delaware Department of Natural Resources and Environmental Control (“DNREC”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”), by not affording the public with adequate accommodations in connection with an air quality permit hearing on June 4, 2013.  For the reasons discussed below, it is the position of this Office that DNREC did not violate FOIA in connection with the permit hearing.
On April 7, 2013, DNREC’s Division of Air Quality issued a public hearing notice for the application of the Delaware City Refining Company (“DCRC”) to renew an air quality permit for DCRC’s oil refinery in Delaware City.  Initially, the permit hearing was scheduled to take place on April 30, 2013 at the Delaware City library, a fairly small venue.  Prior to the scheduled hearing date, DNREC postponed the hearing date to June 4, 2013.
Approximately a week prior to the rescheduled hearing date, due to increased public interest in DCRC’s operations, DNREC decided to change the hearing location from the Delaware City library to Gunning Bedford Middle School, a much larger venue.  DNREC subsequently learned of a scheduling conflict at Gunning Bedford and was again required to find a new venue for the permit hearing.  DNREC’s third and final venue choice was the Delaware City Fire Company, a mid-sized venue that accommodates approximately 200 persons.  It appears that DNREC anticipated and prepared for an overflow crowd at the permit hearing.
On June 4, 2013, a hearing officer designated by the DNREC Secretary convened the permit hearing at the Delaware City Fire Company.  Due to the large crowds that appeared on the scene, the hearing officer arranged for loudspeakers to be placed outside the facility so that those in attendance might monitor the proceedings.  The hearing officer also arranged for a sign-up sheet to be passed among those in attendance so that anyone who desired to speak would have a chance to do so.  50 of the 88 attendees who signed up to speak were given the opportunity to and did state their positions at the permit hearing.  The balance of those who signed up either chose not to speak, or were permitted to submit their comments in writing.
On June 24, 2013, the ACLU filed this action alleging that DNREC violated FOIA by holding a public hearing in a facility that it had reason to know was insufficient in size to handle the number of citizens likely to attend.  The petition requests that DNREC be required to hold an additional public hearing on DCRC’s application at a facility that is large enough to hold all members of the public who are expected to attend.  By response dated July 17, 2013 (the “Response”), DNREC asserts that the petition lacks merit because DNREC and the hearing officer acted reasonably in dealing with the expected overflow crowd and accommodated everyone who wished to participate in the permit hearing.
The petition presents the question of whether DNREC violated FOIA by holding the permit hearing in a facility that DNREC knew or should have known would not accommodate all those who wished to attend.  We need not reach that issue as we conclude that DNREC, as a “body of one,” is exempt from FOIA’s open meeting requirements.
DNREC is a statutory body created by the General Assembly.  See 29 Del. C. § 8001.  The DNREC Secretary1  is the “administrator and head” of DNREC.  29 Del. C. § 8002(a).  The Secretary is charged with, among other things, enforcing the State’s environmental control statutes and controlling the pollution of the State’s land, water, underwater and air resources through a statutory permitting process.  See 7 Del. C. §§ 6003, 6005(a).  The Secretary has the power and duty to supervise, direct and account for the administration and operation of DNREC and its divisions, including the Division of Air Quality.  See 29 Del. C. § 8003(1).
Without question, DNREC is a “public body” as defined in FOIA.  See 29 Del. C. § 10002(h).  As a public body, DNREC is subject to FOIA’s “open records” provisions, meaning that DNREC’s records are open to public inspection unless the records or portions of records are protected from disclosure pursuant to one or more statutory exemptions.  See generally 29 Del. C. §§ 10003, 10002(l).  DNREC, despite being a public body, is not subject to FOIA’s open meeting requirements.
FOIA’s open meeting provisions, which are memorialized in FOIA § 10004, generally require that every meeting of a public body be open to the public except to the extent portions of meetings are permitted to be closed for non-public executive sessions.  See generally 29 Del. C. §§ 10004(a), (b), (c).  Unless exempt, public bodies must provide advance notice of and agendas for their public meetings and maintain and make available for public inspection minutes of all of their meetings, including executive sessions.  See 29 Del. C. §§ 10004(e), (f).
FOIA expressly exempts from FOIA’s open meeting provisions “[p]ublic bodies having only one member.”  29 Del. C. § 10004(h)(6); see also Att’y Gen. Op. 12-IIB07 (May 4, 2012), 2012 WL 1680116, at *2 (“The open meeting requirements of FOIA . . . specifically exclude[] public bodies with one executive decision making/voting “member,” such as the Governor’s Office or a Mayor’s Office.”); Att’y Gen. Op. 02-IB22 (Sept. 13, 2002), 2002 WL 32100329, at *2 (determining that county executive, as a “body of one,” did not violate FOIA by failing to notice meeting with council members concerning public business); Att’y Gen. Op. 01-IB15 (Oct. 23, 2001), 2001 WL 1593115, at *2 (holding that FOIA’s open meeting provisions did not apply to budget discussions between county administrator, as a “body of one,” and his department heads and staff).  This exemption, typically referred to as the “body of one” exception, is consistent with the concept of a public “meeting,” which is defined in FOIA as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business either in person or by video-conferencing.”  See 29 Del. C. § 10002(g) (emphasis added).
Given that DNREC is headed by a single executive officer — namely, the Secretary — rather than a “group” of individuals, DNREC is not subject to the open meeting provisions of FOIA.2   Accordingly, DNREC was not required to hold the permit hearing in accordance with FOIA § 10004.3
For the foregoing reasons, we conclude that DNREC did not violate FOIA in connection with the permit hearing because DNREC is not subject to FOIA’s “open meeting” requirements.
Very truly yours,
/s/ Ian R. McConnel
Ian R. McConnel, Chief Deputy Attorney General
cc:   Ralph K. Durstein III, Deputy Attorney General (via email)
FOIA Opinion Distribution List (via email)
1 The Secretary is appointed by the Governor, with the advice and consent of the state Senate, and serves at the pleasure of the Governor.  See 29 Del. C. § 8002(a).
2 We note that an executive official who serves as the head of a public body having only one member may appoint committees, advisory groups or other bodies that constitute “public bodies” in their own right.  See Att’y Gen. Op. 01-IB15 (Oct. 23, 2001), 2001 WL 1593115, at *2 (observing that where an executive “body or one” delegates official duties to a group of individuals, FOIA might apply because the group may amount to a “committee”).  The record in this case reflects that the Secretary delegated authority to the hearing officer to conduct the hearing and make an initial determination with respect to DCRC’s permit application.  The Secretary did not delegate any authority or duties related to the application to a group of individuals.
3 Though not controlled by FOIA, the permit hearing was subject to statutory and regulatory requirements under non-FOIA law.  See 7 Del. C. § 6004; 7 Del. Admin. C. § 1130-7.10.  We do not address, and have no authority in this case to make a determination with respect to, whether DNREC conducted the hearing in accordance with other applicable law.

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