Delaware Department of Justice
Attorney General
Kathy Jennings

14-IB03 06/16/14 FOIA Opinion Letter to Mr. Morse, Ms. Roe and Ms. Wallace re: FOIA Complaint Concerning the Newark Board of Adjustment


Attorney General Opinion No. 14-IB03

June 16, 2014

Richard H. Morse
American Civil Liberties   Union Foundation
100 West 10th Street
Suite 103
Wilmington, Delaware 19801
Counsel for Petitioners
Jennifer Wallace
19 Sue Lane
Newark, Delaware 19711
Amy W. Roe
19 Sunset Road
Newark, Delaware 19711

RE: FOIA Complaint Concerning the Newark Board of Adjustment

Dear Mr. Morse, Ms. Roe and Ms. Wallace:
On April 1, 2014, the American Civil Liberties Union Foundation of Delaware (the “ACLU”), on behalf of Newark Residents Against the Power Plant (“NRAPP”), and its members, Amy Roe and Jennifer Wallace (collectively, the “Petitioners”), petitioned for review of the action of the Board of Adjustment of the City of Newark (the “Board”)  in holding a public hearing at a facility that the Petitioners claim the Board had reason to know was insufficient in size to handle the number of citizens likely to attend (the “Petition”). Counsel for ACLU provided copies of the Petition to counsel for the City of Newark (the “City”) and the Board. The City, the Board, and The Data Centers, LLC filed timely responses. The Petitioners then filed a timely reply on May 6, 2014, to which the City, the Board, The Data Centers, LLC filed sur-replies, the last of which was sent by Counsel to the Board on May 28, 2014.


The Petition arises from a March 19, 2014 hearing (the “Hearing“)  before the Board relating to the proposed construction and operation of a data center (the “Data Center“) on the University of Delaware Science and Technology (STAR) Campus, and request to construct a gas-fired power plant as part of the Data Center.   The purpose of the Hearing was to consider the appeal of a zoning verification (the “Zoning Verification“) issued by the City’s Planning and Development Department.  The Hearing was a formal legal hearing, and there was no opportunity for public comment.  The Petitioners were among the Appellants who challenged the Zoning Verification.
The Board scheduled the Hearing to be held at 6:00 p.m. on March 19, 2014 in the auditorium of Newark High School at 750 East Delaware Avenue, Newark, Delaware (the “Facility”). The Petitioners claim the capacity of the Facility is approximately 700 persons. Board hearings are generally held in City Council Chambers, a venue that holds approximately seventy-five to one hundred people; however, because the proposed Data Center has drawn significant public interest, the venue of the Hearing was moved to the Facility, which is the largest non-University public venue available within the City.
The Petitioners allege the Board had reason to know that the facility was too small to hold many of the citizens who wanted to attend, based upon a statement by State Representative John Kowalko to Carol Houck, the manager of the City of Newark, that the Facility would not be large enough to hold the many Newark residents who were expected to attend the Hearing. Petitioners allege Ms. Houck did not acknowledge the need to move the hearing to a larger facility and did not move the hearing.
To assure that the Auditorium did not become overcrowded, City Police Officers periodically stopped admitting people to the Facility. The parties dispute whether anyone who desired to attend the Hearing was turned away.


FOIA’s “Declaration of Policy” provides that “citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made ….” 29 Del. C. § 10001.  The Board is a public body. See 29 Del. C. § 1000(2)(h). “Every meeting of all public bodies shall be open to the public except those closed” for a permissible executive session. 29 Del. C. § 10004(a).


The Petitioners assert the Board violated the law when it decided to go forward with the Hearing at the Facility after it knew that the room was too small to hold everyone who was expected to attend. There is no dispute that the Board knew of the heightened interest in the subject matter of the hearing, or that it arranged to move the Hearing to a much larger facility. The Petitioners argue that

29 Del. C. § 10004(a) gives all members of the public the right to be present. Att’y Gen. Op., 02-IB09, 2002 Del. AG LEXIS 8, *5 (April 12, 2002). This means 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.” Id. at 5-6.

Even if we interpret the statute as the Petitioners’ urge, neither FOIA nor our earlier decisions require that a public body predict in advance the exact number of people who will attend.  The only requirement is that “the public body . . . find another, larger place for the meeting,” and the size of the venue chosen is “reasonable.” Att’y Gen. Op. 98-IB12. The Board was not required to use a venue that could “accommodate any possible number of persons who might attend.” Id. Given the information made available to the Board at the time the venue was selected, it cannot be said that the decision to use the Facility was unreasonable. See, Gutierrez v. City of Albuquerque, 631 P.2d 304 (N.M. 1981) (FOIA requirements met even where crowd exceeded capacity of large venue); Gerwin v. Livingston County Bd., 802 N.E.2d 410, 417 (Ill.App.3d 2003) (requirement that all interested parties be accommodated would permit invalidation of action by public body by the simple method of overflowing the venue, citing Gutierrez at 306). See also Maxwell v. Carney, 548 S.E.2d 293, 295 (Ga. 2001) (requirement of “adequate” seating doesn’t require seating for everyone in the county).
Under the facts of this case, the public policy concerns under 29 Del. C. § 10001 are satisfied.  The matter before the Board was oral argument of an appeal of a Zoning Verification. Though defined as a “public meeting,” this was an administrative proceeding at which the parties were to present the legal arguments supporting their respective positions on appeal and the testimony of just two expert witnesses. There were approximately 700 people who attended the Hearing who had the opportunity to observe the conduct of the Hearing. As the Delaware Court of Chancery has observed:

Although FOIA entitles citizens to notice of public meetings and to attend meetings of public bodies, FOIA does not mandate that public bodies allow for public comments at any or all meetings. There is nothing in the text of the declaration of policy or the open meeting provision requiring public comment or guaranteeing the public the right to participate by questioning or commenting during meetings. What is provided by FOIA generally, and by the open meetings provision in particular, is public access to attend and listen to meetings.

Reeder v. Dept. of Insurance, 2006 Del. Ch. LEXIS 46, 11-12 (footnotes omitted). Even if some people were turned away from the Hearing, a point over which the parties disagree, it cannot be said that the public at large was denied the opportunity to attend and observe the Hearing, nor can it be said that the presence of those persons who may have been turned away would have changed the outcome of the Hearing.
We therefore conclude that no violation of FOIA occurred with respect to the Board Hearing on March 19, 2014.
Very truly yours,
/s/ Edward K. Black
Edward K. Black
Deputy Attorney General
/s/ Allison E. Reardon
Allison E. Reardon, State Solicitor
Cc: John W. Paradee, Esquire
Max B. Walton, Esquire
Richard A. Forsten, Esquire

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