Delaware’s Attorney General Kathy Jennings notified the Town of Ellendale that they had violated FOIA regulations
A recent opinion released by the Delaware Attorney General Kathy Jennings found that the Town of Ellendale’s council violated several sections of the Freedom of Information Act (FOIA). A FOIA complaint was filed by former Councilwoman Tamara Skis who resigned her seat in March.
“The petition submits two allegations for consideration,” the opinion read. “The January 30, 2023, Planning and Zoning Commission meeting notice failed to include an agenda as required and a quorum of council members met in person and communicated over email to discuss and make decisions about public business outside of a public meeting.”
The opinion continued that Skis submitted various emails involving council members as well as a photograph of the town bulletin board showing the Planning Commission meeting notice without an agenda. On March 14, 2023, council, through the Council President, responded to the allegations, providing affidavits from the three council members that they had never met to discuss town business outside of a duly noticed meeting. The members did admit that between January 2023 and February 2023, they have discussed “mundane town business” through email, acknowledging that this was technically a violation of FOIA. Council was briefed by the Town Solicitor and the “transgression will not be repeated,” the opinion read.
“The public body has the burden of proof to demonstrate compliance with FOIA,” the opinion continued. “For the first claim, you state the town failed to post an agenda for its January 30, 2023, Planning and Zoning Commission meeting and provided a photograph alleged to be taken four days before the meeting, showing that the meeting notice did not include an agenda. The response did not address this claim. As the town failed to demonstrate it posted an agenda for this meeting as required by FOIA, we find that a violation of FOIA occurred in this regard.”
As to the second allegation, the opinion stated that FOIA requires public business to be performed in an open and public manner so that citizens “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.” The opinion continues that the burden of proof in this allegation fell to Skis. Because the town had sworn affidavits from the three council members that they had not met in person to discuss town business, that town was found not to have violated FOIA in that allegation.
“The Town Council’s email practices compel a different result,” the opinion read. “The town attests, through affidavit, that those emails involving more than two councilmembers involved “mundane town business.” The provided emails demonstrate the town councilmembers addressed various matters with more than two members on several occasions. In one instance, after a councilmember initially questioned whether a letter regarding a tax increase should be approved at a council meeting, a quorum of councilmembers exchanged their thoughts and reached a consensus on a letter notifying the community of a property tax increase adopted in August 2022, the elected council members, and opportunities for the community to get involved in committees and other efforts to support the town. Accordingly, we find that a quorum of town councilmembers violated FOIA in at least one set of email exchanges by privately discussing and deciding on public business outside of a public meeting.”
As for the penalties for violating FOIA, the opinion explained that the AG’s office lacked the authority to invalidate the actions of the council although they may recommend remediation.
“In these circumstances, the record does not include sufficient information to determine the extent of the affected interests and whether the specific steps may remediate these violations while protecting other legitimate public interests,” the opinion concluded. “The response states that the councilmembers are no longer engaging in this email practice and the councilmember attest they have now been briefed by the Town Solicitor on this topic and the transgression will not be repeated.” We recommend that the town ensures that its agenda postings and email communications comply with FOIA in the future.”
The Town of Ellendale did not respond to several attempts to obtain a response.
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