|Civil Division- Kent County
||March 22, 2002
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Re: Freedom of Information Act Complaint Against Sussex County Council
Dear Mr. Kramer:
On January 14, 2002, our Office received your Freedom of Information Act ("FOIA") complaint against the Sussex County Council ("the Council") alleging that the Council violated the open meeting law by failing to prepare minutes of a meeting on December 11, 2001.(1)
By letter dated January 15, 2002, we asked the Council to respond to your complaint. We received the Council's response on March 1, 2002. The Council contends that it "adjourned" the public meeting on December 11, 2001, and that the luncheon that followed at Sussex Pines was not a "public meeting" subject to FOIA because no official action was taken by the Council. Alternatively, the Council contends that the luncheon was open to the public and noticed in the agenda for the December 11, 2001 meeting.
FOIA requires public bodies like the Council to "maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record." 29 Del. C. § 10004(f).
The agenda for the December 11, 2001 meeting of the Council listed: "12:00 Sussex County Land Trust -- Luncheon at Sussex Pines." The minutes of that meeting state "that the County Council would be having lunch with Sussex County Land Trust. The purpose of the luncheon is to meet the Board of Directors. There will not be any County action taken at the luncheon and anything discussed will be presented formally at the County Council meeting on December 18th."
The minutes of the December 18, 2001 Council meeting show that the Council listened to a proposal by Wendy Baker, President of the Sussex County Land Trust, "to establish a private-public partnership between the organization and the County to preserve open space in Sussex County." Members of the Council endorsed a proposal to enact an ordinance to establish a program with the Land Trust.
We do not agree with the Council's characterization that it "adjourned" the December 11, 2001 meeting, and that what transpired over lunch at Sussex Pines was not a "meeting" of the Council. By listing the Sussex Pines luncheon on the agenda for the December 11, 2001 meeting, the Council clearly considered it part of the public business noticed for that meeting.
The application of the open meeting law does not turn on whether the Council took any "official action" at the luncheon. The Chancery Court has rejected the notion that FOIA only applies to gatherings where a public body takes formal action, but not to a "workshop" held at a local restaurant. Otherwise, "there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business so long as the Board reached no formal decision at that private meeting." Levy v. Board of Education of Cape Henlopen School District, Del. Ch., C.A. No. (Sept. 11, 1989) (Chandler, V.C.). The open meeting law applies to "fact gathering, deliberations and discussions, all of which surely influence the public entity's final decision." Id.
Without minutes, it is difficult to know one way or the other what the Council discussed with representatives of the Land Trust over lunch on December 11, 2001. But since this was the continuation of a public meeting subject to FOIA, we will draw the adverse inference that the Council discussed entering into a partnership with the Land Trust. This inference is reinforced by the minutes of the Council's December 18, 2001 meeting, where the Council decided to endorse such a partnership and enact the necessary ordinance.
For the foregoing reasons, we find that the Council violated the open meeting requirements of FOIA by not preparing minutes of the luncheon between the Council and representatives of the Land Trust on December 11, 2001. We do not think that any remediation is necessary because the issue of a partnership between the County and the Land Trust was fully aired at a public meeting on December 18, 2001. The Council is cautioned, however, to strictly comply with the requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady
Dennis L. Schrader, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator
You do not complain that the public was unable to attend or participate in the luncheon meeting due to limited space, so we do not need to address that issue. We note, however, that meetings of public bodies in restaurants may give rise to concerns under the open meeting law.