At a workshop prior to the regular City Council meeting on October 11, Milford City Council underwent Freedom of Information Act (FOIA) training presented by Max Walton, an attorney with Connolly Gallagher LLP. Walton is the chair of his firm’s government practice and concentrates on litigating on behalf of government entities and businesses. He is also a Senior Fellow with the University of Delaware’s Institute of Public Administration where he instructs students on government law and is a frequent lecturer on FOIA matters.
“FOIA has two basic components,” Walton began. “These include open meetings and open records which present a number of tricky questions. Often, the answers are not logical, practical or simple. I can tell you that I don’t always agree with the Attorney General rulings related to FOIA but will explain how decisions have been made in the past.”
The FOIA statute states that public business must be performed in an open and public manner so that citizens have the opportunity to observe the performance of public officials and to monitor those decisions as they formulate and execute public policy. It also states that it is vital that citizens have easy access to public records in order to keep society “free and democratic.”
“Town council is a public body,” Walton said. “But ultimately, any board, commission, agency or ad hoc committee you guys put together is subject to FOIA. I’ll give you an example. The Mayor of Rehoboth put together a working group to look at rate structures. He appointed the City Manager, Finance Director, Public Works Director and four members of the public. Of course, the four employees routinely discussed city matters, including rates, on a regular basis. But because there were also four citizens on the committee, the group was subject to FOIA.”
Walton explained that every meeting must be an open meeting with very few exceptions. He advised council that if there is any question whether a meeting should be open, they should choose to make it an open meeting in order to err on the side of caution.
“One common mistake council members make,” Walton said. “The City Manager sends out a group email to council saying they are going to be discussing “X” at the next board meeting. One of the council members then hits “Reply All” and asks a question about the matter to be discussed, and then another chimes in with comments. If you are FOIA’d for that, you will get in trouble for holding a private meeting through email. When you get emails like that, it is not a forum to discuss the matter, it is simply for your information. Do not reply all to discuss it as you need to discuss it in the open meeting.”
New FOIA regulations now cover virtual meetings which have become very common during the COVID-19 pandemic. There must be a notice that the meeting is available virtually and the meeting must have an anchor location. Each person who speaks must identify themselves as should each council member. Council must also be sure that members and witnesses can hear comments of others and view each person who is at the meeting. All documents must also be visible to those in attendance both virtually and in person.
“Under the generalized FOIA regulation, you are not required to have public comment, but if you do, you have to provide the ability for public comment during a virtual meeting. You must also maintain minutes and all actions taken during that meeting are valid just as if you held the meeting only in person. If a technological problem causes issues with public comment, you cannot be held responsible for that under FOIA. An anchor location simply means that there must be one location, like council chambers, for the meeting. Currently, they are not enforcing this as many entities are still working out the bugs in their virtual formatting.”
According to Walton, all public bodies must give public notice of regular meetings at least seven days in advance. If an agenda has been determined at that time, it must be included with the notice. Walton explained that the seven days is seven calendar days, not business days.
“You must have an agenda for all meetings,” Walton said. “If you have a committee, it has to have an agenda. It can change and there can be clarifications, but all meetings must have an agenda. If it is possible to give seven days’ notice for agenda changes, it is recommended you do so. Now, suppose a councilperson wants to add something on the agenda within those seven days. This may happen because there is something that requires a first read and they want to get that out of the way. The best advice is to always err on the side of caution and stick to the seven-day notice. There are always exceptions, but this is the general rule.”
Minutes are also required for every city-related meeting.
“I guarantee you have a group subject to FOIA because they don’t take minutes,” Walton said. “I guarantee you have a committee that does not take minutes because every town has one.”
Executive sessions are often necessary and may seem to conflict with FOIA regulations, Walton stated. The fact is that executive sessions are necessary, but they are closely scrutinized by the Attorney General’s office.
“Under the law, you cannot vote in executive session,” Walton said. “You must take minutes and, unless public disclosure would defeat the lawful purpose of the executive session, must be made public. However, most minutes from executive session are confidential and no person involved in the meeting is permitted to release any of the information discussed. For instance, when David (Rutt, City Solicitor) is in executive session with you, he often provides you with legal advice which is covered under attorney-client privilege. If David gives you a memo in executive session, that memo should never be seen by the public. There are exceptions. For instance, if you are purchasing land and looking at different parcels, you want negotiations to remain private in order to get a good price. Once you go to settlement on that land, however, the minutes become public record.”
Walton stated that this was a matter that needed strict adherence. He pointed out that the Town of Newark lost a case they should have won that led to a $42 million loss. They lost the case because something was leaked that was discussed in executive session.
“If I am advising you legally and something is leaked that was discussed during executive session, I will turn you in,” Walton said. “There are other details about executive session to keep in mind. You are not required to tell an employee you will be discussing their position or salary in executive session. You must talk about what is on the executive session agenda. For instance, if you are supposed to be discussing a personnel matter, you cannot discuss pending litigation that is unrelated. You also cannot know how every single member is going to vote going into the meeting. There was a case where an attorney tried to get a variance from a Board of Adjustments and there was opposition. The decision was tabled, and, after the meeting, the attorney and client went out to dinner. In the booth behind them, they could hear a conversation about how poorly the attorney had handled his argument. When the attorney walked over to see who it was, the entire Board of Adjustments were in the booth, discussing what should have been discussed only in public meetings. He ended up getting his variance.”
Another issue that Walton said he preferred city councils did not do was to go out to dinner or for drinks after the council meeting. Although council may not discuss council business at that time, the appearance sends a message that they could be doing so.
Public records are also subject to FOIA and what constitutes a public record can be broad, Walton explained. When a FOIA request is investigated, council will be asked what email addresses are used. If any council member has sent emails related to council business using a personal email account, that will be collected as public record. If a council member uses a personal computer and not just a city issued computer, the personal computer will also fall under FOIA and could be collected.
“When I am doing a FOIA investigation, the first thing I search for are cuss words,” Walton said. “You guys have a bad habit of emailing “that guy is a blank-blank.” That will kill you. If you need to call someone a name, pick up the phone and do it. Don’t put it in an email because those words will be in the paper, and you could be facing a civil rights suit on top of a FOIA violation.”
There are some records that are considered non-public, including personnel, medical or student files, trade secrets, investigatory files for civil or criminal law-enforcement, criminal files, criminal records, intelligence files, the identity of someone who provided a charitable contribution and collective bargaining documents.
“There is a very new Attorney General opinion that you do not have to provide records when litigation is pending in court,” Walton said. “You also do not have to release anything regarding your IT systems, and you do not have to submit to FOIA requests from out of state.”
All FOIA requests should be responded to within 15 days, but you can request extensions if the request is detailed, Walton explained. Council can also charge for documents. Walton also explained that penalties for FOIA violations vary.
“If there is a good faith violation, which is the most common, they will ask you to do some remediation and training,” Walton said. “However, if there is a continuous pattern, the penalties can be more severe. If you thumb your nose at them, they can actually sue you and stick you with attorney’s fees and more. Most of the time, people are trying to do it right as there is honesty and integrity in elected bodies to do it right.”
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