March 9, 2004
Civil Division-Kent County (739-7641)
Ms. Kathleen H. Harvey
P.O. Box 318
Odessa, DE 19730
Re: Freedom of Information Act Complaint Against Town of Odessa
Dear Ms. Harvey:
On November 21, 2004, our Office received your Freedom of Information Act (“FOIA”) complaint alleging that the Town of Odessa (“the Town”) violated FOIA by: (1) not maintaining proper minutes of a meeting on December 2, 2002; (2) not providing you with copies of the Town’s written policies regarding the taping of meetings and an increase in the charge for copying public records; and (3) not providing you with a copy of a petition in support of the nomination of John Raudenbush to a vacant Town Council seat.
By letter dated November 24, 2004, we asked the Town to respond to your complaint. Because of the Thanksgiving holiday, we gave the Town until December 12, 2004 for its response. On January 13, 2004, we received your list of rebuttals to the Town’s response. On January 22, 2004, you provided us with additional information in support of your complaint.
According to the Town, you filled out a Public Record Access Form on August 2, 2003 requesting: “Policy regarding taping of meetings + increase in the cost of copies.” The Town acknowledges that it does not have a written policy reflecting the decision by the Town Council in December 2002 to increase the cost of copying public records from 15 cents to $1.00 per page. The minutes of that meeting show that the Council discussed the increase, but the minutes do not record any vote on the issue.
According to the Town, it does not have a written policy regarding the taping-recording of meetings. The Town provided us with a copy of the minutes of a meeting held February 3, 1997 in which the Town adopted a motion to “restrict all electronic recordings of the meetings with the exception for the Town Secretary, which would then become the official recording.”
According to the Town, it made copies of the Raudenbush petition available as a hand-out at a meeting on September 8, 2003. In the Town’s response to your complaint, the Mayor wrote: “I did not know that Ms Harvey did not receive a copy of the petition. I have provided both Ms Harvey and Councilman Unruh a copy via US certified mail, return receipt requested.”
FOIA requires that “[e]ach public body shall 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. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town
assembly where all citizens are entitled to vote), of each vote taken and action agreed upon.”
29 Del. C. § 10004(f).
FOIA requires that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C. § 10003(a). “Any reasonable expense involved in the copying of such records shall be levied as a charge upon the citizen requesting such copy.” Id. “It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.” Id.
A. Minutes of December 2, 2002 Meeting
“As a general rule, for fairness and practical reasons, we do not investigate events that occurred more than six months before we received the [FOIA] complaint.” Att’y Gen. Op. 02-IB10 (Apr. 24, 2002). You allege that the Town violated FOIA by not preparing minutes of its December 2, 2002 meeting which reflected the decision to increase the charge for copying public records under FOIA. Because this meeting occurred more than six months before we received your complaint, we decline to take any further action with regard to this alleged FOIA violation. See Att’y Gen. Op. 00-IB05 (Feb. 18, 2000).
B. Written Town Policies
1. Electronic Recordings of Meetings
The Town does not have a written policy regarding the tape-recording of public meetings, nor does FOIA require one. “This Office has previously determined that the duty to maintain written minutes of public meetings [under FOIA] does not require a public body to tape record the meeting.” Att’y Gen. Op. 98-IB01 (Jan. 21, 1998) (citing Att’y Gen. Op. 94-IO23 (June 21, 1994)).
The Town’s practice regarding recording is reflected in the minutes of a February 3, 1997 meeting where the Council voted to restrict electronic recording to the Town Secretary to help prepare the minutes and ensure that there is only one “official” electronic recording of the meeting. The minutes of a subsequent meeting (August 1, 2001) show that the Council voted to continue this practice to restrict “any audience recordings” so “that the Town’s tape would bed the official record.” If the Town has not already done so, it should provide you with a copy of the minutes of the February 3, 1997 and August 1, 2001 meetings.
2. Copying Charges
FOIA places an affirmative duty on a public body “to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.” 29 Del. C. § 10003(b). You have provided us a copy of the “Town Policy – Price Schedule for Providing Copies of Material to the Public” adopted by the Town on September 5, 2001. Listed in that schedule is a charge of 15 cents for page for Xerox copies. That policy satisfies FOIA’s requirement that a public body establish a written fee schedule for copying public records.
According to the Town, at a meeting on December 2, 2002, the Council decided to increase the charge for photocopying to $1.00 per page. The Town published in its weekly newsletter that the “Council approved the cost of copies under the Freedom of Information Act to $1.00 per page to help cover the cost of supplies and time in both making copies and researching the requests.”
The Town contends that it substantially complied with FOIA by publishing notice of the increased copying charge in the Town newsletter and in the Town’s website (under a section called “Question of the Week). We do not agree. The purpose of requiring a rule or regulation is to make it easy for a citizen to know in advance how much it will cost to have public records copied and to ensure uniform treatment. Accordingly, our “Office has previously determined that when a public body has not promulgated a rule or regulation, it can charge only the actual cost of copying with no additional surcharge.” Att’y Gen. Op. 99-IB08 (June 9, 1999) (citing Att’y Gen. Op. 95-IB08 (Feb. 6, 1995)). The Town can easily comply with this requirement of FOIA by revising its written Town Policy (adopted September 5, 2001) to amend its price schedule for copying public records.
C. Raudenbush Petition
The Town contends that it does not have any record of your filling out a “Public Record Access Form” for a copy of a petition and signature pages to nominate John Raudenbush to a vacant position on the Town Council. According to the Town, at a meeting on September 8, 2003, Councilman Unruh asked if there were copies of the petition available and the Mayor responded “that they were on the sidebar and motioned with my hand to indicate where the copies were in the meeting room.” In the Town’s response to your complaint, the Mayor further stated: “I did not know that Ms Harvey did not receive a copy of the petition. I have provided both Ms Harvey and Councilman Unruh a copy via US certified mail, return receipt requested.”
It appears, therefore, that this FOIA issue has been resolved. The minutes of the Council’s next meeting (on October 6, 2003) show that “Councilman Allen made a motion to nominate Mr. Raudenbush to the vacant Council seat. Mayor Tulloch seconded the motion. Councilman Allen and Mayor Tulloch voted in favor. Councilpersons Williams and Unruh voted against. The motion did not pass.”
For the foregoing reasons, we determine that the Town must provide you with copies of the minutes of the February 3, 1997 and August 1, 2001 meetings reflecting the Town’s practice on electronic recording of meetings, and of the minutes of the December 2, 2002 meeting reflecting an increase in the charge for photocopying. We determine that the Town cannot enforce its $1.00 per page copying charge until it has adopted a written rule or regulation as required by FOIA. We determine that the Town has provided you with a copy of the Raudenbush petition and that issue is now moot.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Clifford B. Hearn, Esquire
Phillip G. Johnson, Opinion Coordinator