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Delaware Department of Justice
Attorney General
Kathy Jennings


15-IB05 06/17/15 FOIA Opinion Letter to Ms. Roberta J. Hemmerich re: FOIA Complaint Concerning the Cape Henlopen Senior Center Bd. of Directors


OFFICE FOR THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 15-IB05
July 31, 2015

VIA EMAIL
Roberta J. Hemmerich
34144 Pinewood Circle
McNicol Place
Lewes, Delaware 19958
BobbieHem@aol.com

Re:    FOIA Complaint Concerning Cape Henlopen Senior Center Bd. of Directors

Dear Ms. Hemmerich:

The Delaware Department of Justice (“DOJ”) received your letter (the “Petition1) seeking a determination as to whether the Cape Henlopen Senior Center, Inc. (“CHSC”) is a “public body” subject to the provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).  For the reasons stated herein, we conclude that the CHSC is not a public body for purposes of FOIA.

FACTS

CHSC is a Delaware nonprofit corporation established by private citizens.2  More than two-thirds of its budget is derived from contributions from the State of Delaware, with Sussex County providing additional financial support.3  At the time of the Petition, both the Mayor and the Chief of Police of the Town of Rehoboth Beach were members of CHSC’s Board of Directors.4  As stated in its bylaws, the purpose of CHSC is “to provide social, physical, and emotional support to senior citizens.”

DISCUSSION

The policy underlying FOIA is clearly stated:

It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.

29 Del. C. § 10001.

To that end, all public bodies in the State of Delaware must comply with FOIA’s open meeting requirements.  See 29 Del. C. § 10004, et al.  “Such mandated openness is intended to ensure ‘governmental accountability, inform the electorate, and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know.’”5).

FOIA defines a “public body” as:

any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:

(1)  Is supported in whole or in part by any public funds; or

(2)  Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or

(3)  Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.

29 Del. C. § 10002(h).6

Thus, three factors must be considered in order to determine whether an entity is a “public body” within the meaning of FOIA.  First, the entity must be a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State.”  Id.  Second, the entity must be (i) established by an act of the General Assembly of the State, or (ii) established by any body established by the General Assembly of the State, or (iii) appointed by any body or public official of the State, or (iv) otherwise empowered by any state governmental entity.  Third, the entity must (i) be supported in whole or in part by any public funds; or (ii) expend or disburse public funds; or (iii) be charged (either implicitly or specifically) by a public official, body, or agency to advise or to make reports, investigations or recommendations.

Based on our review of the record of this case, we conclude that CHSC is not a public body.  First, there is no sense in which CHSC can be deemed a “regulatory, administrative, advisory, executive, appointive or legislative body.”  And while it is undisputed that a large portion of funding for CHSC is derived from “grants-in-aid provided by the State and its political subdivisions,”7 we are not aware of any Delaware authority for the proposition that an entity’s receipt of public funds automatically transforms that entity into a “public body.” As discussed above, the “public funds” requirement is separate and distinct from the requirements concerning an entity’s creation.  If receiving public funds were sufficient for a determination of an entity’s status as a public body, there would be no need for the statute to first require, for example, that an entity be “established by an act of the General Assembly.”  29 Del. C. § 10002(h).

CONCLUSION

The CHSC is not a “public body” within the meaning of 29 Del. C. § 10002(h) because it is not a “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State” and it was not established as described in the statute.  Therefore, the CHSC is not subject to the open meetings and other requirements of FOIA.

Very truly yours,

/s/ Katisha D. Fortune

Katisha D. Fortune
Deputy Attorney General

Approved:

/s/ Meredith S. Tweedie

Meredith S. Tweedie, State Solicitor

cc: Danielle Gibbs, Chief Deputy Attorney General (via email)
Lauren E.M. Russell, Counsel for Cape Henlopen Senior Center (via email)

FOOTNOTES

1 We received the letter on October 7, 2014, and mistakenly believed, until you contacted our office last week, that the Petition had been withdrawn.  On October 31, 2014, we received CHSC’s response by way of a letter from Ms. Lauren E.M. Russell, acting as counsel for CHSC (“Response Letter”).  We also received your “rebuttal” letter on November 22, 2014.  There, you essentially argue that it is wrong that “any organization receiv[e] large amounts of taxpayer’s money and not have any accountability on how it is spent.” You also argue that the nomination of Mayor Sam Cooper and Chief Keith Banks as “ex officio” members of the Board was not permitted by the CHSC bylaws.   Whether the CHSC is subject to FOIA, its open meeting requirements, and the corresponding public monitoring, is addressed herein.  However, whether the CHSC Board of Directors complied with its bylaws is not a legal matter addressed by FOIA and will not be discussed in this letter determination.

2 See Response Letter at p. 1;  www.capehenlopenseniorcenter.org (last visited July 23, 2015).

3 See Response Letter at p. 1.

4 We have been informed that the entire Board has since resigned, although that change of leadership is not yet reflected on CHSC’s website.

5 Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *7 (Del. Ch. May 19, 1994) (citing Delaware Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984)).

6 We have excluded certain exemptions not pertinent to this case.

7 See Response Letter at p. 1.


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