OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

 Attorney General Opinion 17-IB16

 July 10, 2017

 
VIA U.S. MAIL AND EMAIL
Kevin Ohlandt
9 Crosley Ct.
Dover, DE 19904
kevino3670@yahoo.com
 
RE:     May 25, 2017 Correspondence Regarding Early College High School
 
Dear Mr. Ohlandt:
We write in response to your correspondence, received on May 25, 2017, alleging that the Early College High School (“ECHS”) violated the open meetings provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”).  We treat your correspondence as a petition (the “Petition”) for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur.  As discussed more fully below, we conclude that your allegation that the ECHS Board of Directors (“Board”) has prevented members of the public from attending one or more Board meetings is too vague to warrant consideration by this Office at this time.  We also conclude that, even if true as a factual matter, your allegations concerning the ECHS Citizens Budget Oversight Committee (“CBOC”) and the Board’s public comment policy fail to allege a FOIA violation.
As an initial matter, we have determined that your allegation concerning locked doors “at the start or right before . . . board meetings”[1] is too vague to warrant consideration by this Office at this time.   Specifically, you have alleged:
 
More than one parent has complained about the door to the school being locked at the start or right before their board meetings.  Parents have had to knock on the door loudly until someone answers.  Parents have reported there is no staff member available to open the door prior to the board meeting.  One parent advised me a student eventually answered the door.
Restricting access or not having a staff person available to open a locked door would prevent parents or citizens from actually attending a public meeting.[2]
 
While we agree as a general matter that physically restricting access to meetings, which FOIA requires be open to the public, would likely amount to a FOIA violation, we note that you have failed to identify specific dates on which this conduct is alleged to have occurred.  As such, your allegation is too vague to warrant consideration at this time.[3]  Of course, you are free to submit a new petition alleging specific facts for our consideration.[4]  However, we note that you have specifically acknowledged that you attended the ECHS Board meeting on May 25, 2017 (the date of your Petition) and encountered an unlocked front door and a sign stating “USE THIS DOOR.”[5]  Thus, while we observe that any action the Board may have taken at prior Board meetings in violation of FOIA “may be voidable by the Court of Chancery,”[6] we also note that the alleged conduct does not appear to be an ongoing pattern or practice.
In your correspondence, you also allege that ECHS CBOC violated FOIA by failing to provide notice of its Spring 2017 meeting.  In support, you provided evidence appearing to demonstrate that the ECHS CBOC failed to post notice or an agenda for its meeting(s) to the ECHS website.[7]  However, even if the ECHS CBOC did indeed fail to post such information to the ECHS website, such conduct would not amount to a FOIA violation.  Indeed, while we encourage the practice in the interest of transparency, FOIA does not require charter schools – or any other public body outside of the executive branch of state government – to post notice of meetings to its website.[8]  Rather, FOIA requires conspicuous posting of said notice at the principal place of business or, if no such place exists, at the place of the meeting.[9]  As you have not alleged that the ECHS CBOC failed to physically post notice of its meetings as required by FOIA, we cannot conclude it violated 29 Del. C. § 10003(e)(2).[10]
Finally, you allege that the ECHS Board’s public comment procedure “is unnecessarily vague and is also obtrusive to the spirit of the public’s ability to speak to a public body untethered.”[11]  Importantly, however, the law is well-settled that FOIA does not require a public body to allow for public comment.[12]  As such, it would be inappropriate for this Office to issue an advisory opinion pursuant to 29 Del. C. § 10005(e) regarding ECHS’s public comment procedures.  Of course, we have previously subjected a public body’s actions to First Amendment scrutiny when the public body allows for public comment at a specific meeting.[13]  However, your correspondence fails to allege specifically that the ECHS Board has applied its public policy procedure in a way that would amount to a FOIA violation.  As noted above, you are nevertheless free to submit a new petition alleging facts that might support a conclusion that the Board has violated FOIA in its application of its public policy procedure.
Based upon the foregoing, we conclude that your allegation that the Board has prevented members of the public from attending one or more ECHS Board meetings is too vague to warrant consideration by this Office at this time.  We also conclude that, even if true as a factual matter, your allegations concerning the ECHS CBOC and the Board’s public comment procedure fail to allege a FOIA violation.  We have nevertheless copied ECHS’s counsel, Board President, and Head of School on this written determination to advise them of your concerns.
Very truly yours,
/s/ Michelle E. Whalen
______________________________
Michelle E. Whalen
Deputy Attorney General
 
APPROVED BY:
/s/ Aaron R. Goldstein
______________________________
Aaron R. Goldstein
State Solicitor
cc:
David Sheppard, Esq., Counsel for ECHS (via email)
Dr. Marsha Horton, ECHS Board President (via email)
Dr. Evelyn Edney, ECHS Head of School (via email)
 
[1]           Petition at ¶ 4.
[2]           Id. at ¶¶ 4-5.
 
[3]           See, e.g., Del. Op. Att’y Gen. 16-IB18, 2016 WL 5888777, at *5 (Sept. 29, 2016) (allegations concerning conduct of Mayor at meetings, which did not allege specific dates, too vague to warrant consideration); Del. Op. Att’y Gen. 16-IB14, 2016 WL 3462345, at *3 (June 9, 2016) (concluding that two allegations, including allegation that board chair “routinely discussion [sic] agency business with selected commissioners before meeting times and dates” were too vague to warrant consideration).  While not dispositive to this analysis, we also note that you have not personally observed the alleged conduct, stating only that this information was relayed to you by “[m]ore than one parent.”
 
[4]           To be clear, it is not evident to us that the alleged conduct would amount to a FOIA violation, as you have alleged that the doors were locked “at the start or right before . . . board meetings.” Petition at ¶ 4 (emphasis added).  We do not read FOIA to require citizen access to a public meeting space in advance of the noticed start time.  As such, if you choose to submit a new petition, you may wish to specify the identified start time of the meeting(s) and the specific time(s) in which access to the meeting(s) was restricted or otherwise denied.
 
[5]              Email from Kevin Ohlandt to OpenGovernment@delaware.gov dated June 6, 2017.
 
[6]           This Office’s role upon the filing of a petition pursuant to 29 Del. C. § 10005(e) is limited to determining whether a violation of the FOIA statute has occurred or is about to occur.  As such, to the extent that you seek invalidation of any action(s) the Board may have taken at prior Board meetings, or otherwise seek relief which only a court can grant, you may wish to review and take note of the time limitations contained in 29 Del. C. § 10005(a) for pursuing such relief in the Court of Chancery.
 
[7]           Petition at ¶ 2.
 
[8]           See Del. Op. Att’y Gen. 16-IB10, 2016 WL 3136256, at *3 (May 9, 2016) (noting that FOIA’s requirements regarding electronic posting do not apply outside of the executive branch of state government).  We note that 29 Del. C. § 10004(e)(4) states that “noncounty and nonmunicipal bodies” must post notice of meetings on a designated State of Delaware website approved by the Register of Regulations.  However, the legislative history of Senate Bill No. 212 – including floor debates – makes clear that the language was intended to apply to state agencies.  See Del. S.B. 212 syn., 146th Gen. Assem. (2012).  Moreover, even if FOIA required that ECHS post electronic notice of its meetings to a designated State of Delaware website, we note that you have specifically alleged that you were unable to locate notice of the CBOC meetings on ECHS’s website and not a website approved by the Registrar of Regulations.
 
[9]           See 29 Del. C. § 10004(e)(4).
 
[10]         As this determination is limited to a determination of whether a FOIA violation has occurred or is about to occur, it does not address whether some ancillary legal authority required the ECHS CBOC to post electronic notice of its meetings to the ECHS website.
 
[11]         Petition at ¶ 6.
 
[12]         See Reeder v. Del. Dep’t of Ins., 2006 WL 510067, at *12 (Del. Ch. Feb. 24, 2006) (“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 meetings.”) (citations omitted).
 
[13]         See, e.g. Del. Op. Att’y Gen. 16-IB18, 2016 WL 5888777, at *3.  We have also acknowledged that “more recent court opinions have distinguished First Amendment analyses from the application of FOIA.”  See id.

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