Civil Division-Kent County (739-7641)
Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Re: Freedom of Information Act
Complaint Against City of Newark
Dear Mr. Porach:
Our Office received your Freedom of Information Act ("FOIA") complaint
on November 18, 1999. You allege that the City of Newark ("the City") violated
the open meeting requirements of FOIA by holding a meeting on November
17, 1999 to discus public business which was not open to the public. According
to your complaint, those present at the meeting were several members of
the City Planning Department, the Chairman of the City's Parking Committee,
and representatives of F.R. Harris, Inc., a private consultant.
By letter dated November 29, 1999, we asked the City to respond to your
complaint within ten days. That same day, we received the City's response
(which had crossed in the mail with our letter).
The City denies that the meeting on November 17, 1999 was of a "steering
committee" of the City Parking Committee. According to the City, the purpose
of the meeting was to bring "officials of the City, the state and WILMAPCO"
together to meet with representatives from "the selected engineering consultant
[F.R. Harris] for the first time" to "review the letter of award with the
consultants and to review their technical proposal in detail." In addition
to the Harris representatives, there were six persons present: Cathy Dennis,
of the Delaware Transit Corporation; Arthur Amick, Chair of the Newark
Parking Committee; Carol Houck, Assistant Administrator of the City; Maureen
Feeney Roser, Assistant Planning Director and City Parking Manager; Roy
Lopata, City Planning Director; and Heather Ehrlich of WILMAPCO.
FOIA requires that "[e]very meeting of all public bodies shall be open
to the public" except those closed for executive session for a purpose
authorized by law. 29 Del. C. Section 10004(a). The Act defines
a "public body" to include any "committee, ad hoc committee, special committee,
temporary committee, advisory board [or] subcommittee" of any public body.
The legal questions here are: (1) whether this group of individuals from
four different organizations amounted to a "public body" for purposes of
FOIA; and (2) if not, whether the four representatives from the City who
were present at that meeting constituted an "ad hoc committee" or "subcommittee"
of the City.
We do not believe that this was the kind of meeting of a "public body"
that is controlled by FOIA. Comprised of individuals from four different
organizations, the group as a whole cannot be viewed as a single statutory
body, as contemplated by the open meeting law. It is important to note
that the City's representatives were City employees, not members of the
Council. As employees fulfilling the duties of their employment, they do
not constitute an ad hoc committee or subcommittee of the City that would
require a finding that they constitute a public body as that term is defined
in 29 Del. C. § 10002.
In The Advertiser Co. v. Wallis, Ala. Supr., 493 So.2d 1365 (1986),
the Commissioner of Mental Health met with officials from other executive
branch departments and union representatives to discuss contract negotiations
to avert a strike. In an unrelated meeting, officials from the Alabama
Medicaid Agency met with hospital officials to discuss a recent audit of
expenditures. A local newspaper sued, claiming that both meetings should
have been open to the public. The Alabama Supreme Court disagreed. "[W]e
find that the entities to which the Sunshine Law applies are only those
governed by a group of individuals who sit as a deliberative body to set
policy regarding the public matters with which the entity is entrusted."
493 So.2d at 1369. See also SJL of Montana Associates
Ltd. Partnership v. City of Billings, Mont. Supr., 867 P.2d 1084 (1993)
(FOIA did not apply to a meeting between a city engineer and the public
safety works director with a contractor to discuss construction delays
on a municipal street project).
That does not mean, however, that every "joint" meeting of public officials
from different public bodies is outside the scope of FOIA. The issue can
only be decided on a case-by-case basis, depending on the facts presented.
This office will continue to closely scrutinize such instances to assure
that public bodies do not circumvent the clear mandate of public access
to their meetings.
Nor does the presence of four City officials from the executive branch
turn the meeting on November 17, 1999 into a "subcommittee" or "ad hoc
committee" of the City. The courts in other states by and large have excluded
from the scope of the open meeting laws meetings between executive officers
and their subordinates. See, e.g., City of Sunrise v.
News & Sentinel Co., Fla. App., 542 So.2d 1354 (1989) (meeting
of mayor and city transportation director to discuss employee disciplinary
matters); Cape Publications, Inc. v. City of Palm Bay, Fla. App.,
473 So.2d 222 (1985) (meeting between city manager and personnel director
to discuss criteria for recruitment of new chief of police). We find the
underlying policy reasons persuasive. "Securing government accountability
at the decisional level is one thing. Adversely affecting administrative
efficiency at the non-decisional level is quite another thing. It is inconceivable
that the salutary goal of letting the 'sunshine' in on meetings of 'public
governmental bodies' envisioned the elimination of all intermediate layers
of ozone to the extent of crippling or impeding the day-to-day efficiency
of purely administrative functions." Tribune Publishing Co. v. Curators
of the University of Missouri, Mo. App., 661 S.W.2d 575, 584 (1983).
As the City points out, "any of the 'work product' generated as a result
of the transit study project will be given a thorough public airing at
meetings and/or workshops." Moreover, the consultant "must present status
reports on progress at public meetings." The public, therefore, will have
input and be involved before any decisions are made by the City to take
actions affecting the public based on the consultant's recommendations.
For the foregoing reasons, we find that the City did not violate the
open meeting requirements of FOIA by meeting with representatives from
other organizations on November 17, 1999 to discuss the Harris consulting
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: The Honorable M. Jane Brady, Attorney General
Roger A. Akin, Esquire, City Solicitor
Mr. Phillip G. Johnson, Opinion Coordinator
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