GE
CIVIL DIVISION (302) 677-8400
AX: (902) 577-6620
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (202) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 AX: (202) 577-6499,
OFFICE OF THE ATTORNEY G
NERAL OF THE STATE OF DELAWARE
Attorney General Opinion 17-1B16
July 10, 2017
VIA U.S. MAIL AND EMAIL
Kevin Oblandt
9 Crosley Ct.
Dover, DE 19904
kevino3670@yahoo.com
RE: May 25,2017 Correspondence Regarding Early College High School
Dear Mr, Ohlandt:
We write in response to your correspondence, received on May 25, 2017, alleging that the
Early College High School (“ECHS") violated the open meetings provisions of Delaware's
Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence
as a petition (the “Petition”) for a determination pursuant to 29 Del. C. § 10005(e) regarding
whether a violation of FOIA has occurred or is about to occur. As discussed more fully below, we
conelude that your allegation that the ECHS Board of Directors (“Board”) has prevented members
of the public from attending one or more Board meetings is too vague to warrant consideration by
this Office at this time, We also conclude that, even if true as a factual matter, your allegations
concerning the ECHS Citizens Budget Oversight Committee (“CBOC”) and the Board’s public
comment policy fail to allege a FOIA violation.
As an initial matter, we have determined that your allegation conceming locked doors “at
the start or right before . . . board meetings” is too vague to warrant consideration by this Office
at this time. Specifically, you have alleged:
More than one parent has complained about the door to the
school being locked at the start or right before their board meetings.
Parents have had to knock on the door loudly until someone
answers. Parents have reported there is no staff member available
Petition at 4 4,to open the door prior to the board meeting. One parent advised me
a student eventually answered the door.
Restricting access or not having a staff person available to
open a locked door would prevent parents or citizens from actually
attending a public meeting.”
While we agree as a general matter that physically restricting access to meetings, which FOIA
requires be open to the public, would likely amount to a FOIA violation, we note that you have
failed to identify specific dates on which this conduct is alleged to have occurred. As such, your
allegation is too vague to warrant consideration at this time.’ Of course, you are free to submit a
new petition alleging specific facts for our consideration.‘ However, we note that you have
specifically acknowledged that you attended the ECHS Board meeting on May 25, 2017 (the date
of your Petition) and encountered an unlocked front door and a sign stating “USE THIS DOOR.”*
Thus, while we observe that any action the Board may have taken at prior Board meetings in
violation of FOIA “may be voidable by the Court of Chancery,” we also note that the alleged
conduct does not appear to be an ongoing pattern or practice
2 td. at 994-5.
> See, e.g, Del. Op. Att'y Gen, 16-IB18, 2016 WL. 5888777, at *5 (Sept. 29, 2016)
(allegations concerning conduct of Mayor at meetings, which did not allege specific dates, too
vague to warrant consideration); Del. Op. Att'y Gen. 16-IB14, 2016 WL 3462345, at *3 (June 9,
2016) (coneluding that two allegations, including allegation that board chair “routinely discussion
[sic] agency business with selected commissioners before meeting times and dates” were too vague
to warrant consideration). While not dispositive to this analysis, we also note that you have not
personally observed the alleged conduct, stating only that this information was relayed to you by
“{mlore than one parent.”
‘ To be clear, it is not evident to us that the alleged conduct would amount to a FOIA
violation, as you have alleged that the doors were locked “at the start or right before... board
meetings.” Petition at 4 (emphasis added). We do not read FOIA to require citizen access to a
public meeting space in advance of the noticed start time, As such, if you choose to submit a new
petition, you may wish to specify the identified start time of the meeting(s) and the specific time(s)
in which access to the meeting(s) was restricted or otherwise denied
Email from Kevin Ohlandt to OpenGovernment@state.de.us dated June 6, 2017.
® This Office’s role upon the filing of a petition pursuant to 29 Del. C. § 10005(e) is limited
to determining whether a violation of the FOIA statute has occurred or is about to occur. As such,
to the extent that you seek invalidation of any action(s) the Board may have taken at prior Board
meetings, or otherwise seek relief which only a court can grant, you may wish to review and take
note of the time limitations contained in 29 Del. C. § 10005(a) for pursuing such relief in the Court
of Chancery.In your correspondence, you also allege that ECHS CBOC violated FOIA by failing to
provide notice of its Spring 2017 meeting. In support, you provided evidence appearing to
demonstrate that the ECHS CBOC failed to post notice or an agenda for its meeting(s) to the ECHS
website.’ However, even if the ECHS CBOC did indeed fail to post such information to the ECHS
website, such conduct would not amount to a FOIA violation. Indeed, while we encourage the
practice in the interest of transparency, FOIA does not require charter schools ~ or any other public
body outside of the executive branch of state government ~ to post notice of meetings to its
website.® Rather, FOIA requires conspicuous posting of said notice at the principal place of
business or, if no such place exists, at the place of the meeting.” As you have not alleged that the
ECHS CBOC failed to physically post notice of its meetings as required by FOIA, we cannot
conclude it violated 29 Del. C. § 10003(e)(2).""
Finally, you allege that the ECHS Board’s public comment procedure “is unnecessarily
vague and is also obtrusive to the spirit of the public’s ability to speak to a public body
untethered.”"" Importantly, however, the law is well-settled that FOIA does not require a public
body to allow for public comment.” As such, it would be inappropriate for this Office to issue an
advisory opinion pursuant to 29 Del. C. § 10005(e) regarding ECHS’s public comment procedures.
7 Petition at § 2.
* See Del. Op. Att'y Gen. 16-1B10, 2016 WL 3136256, at *3 (May 9, 2016) (noting that
FOIA’s requirements regarding electronic posting do not apply outside of the executive branch of
state government). We note that 29 Del. C. § 10004(e)(4) states that “noncounty and nonmunicipal
”” must post notice of mectings on a designated State of Delaware website approved by the
ister of Regulations. However, the legislative history of Senate Bill No. 212 — including floor
debates ~ makes clear that the language was intended to apply to state agencies. See Del. S.B. 212
syn, 146th Gen. Assem, (2012). Moreover, even if FOIA required that ECHS post electronic
notice of its meetings to a designated State of Delaware website, we note that you have specifically
alleged that you were unable to locate notice of the CBOC meetings on ECHS’s website and nor a
‘website approved by the Registrar of Regulations.
9 See 29 Del. C. § 10004(e)(4).
‘0 As this determination is limited to a determination of whether a FOIA violation has
occurred or is about to occur, it does not address whether some ancillary legal authority required
the ECHS CBOC to post electronic notice of its meetings to the ECHS website.
"Petition at § 6.
2 See Reeder v. Del. Dep't of Ins., 2006 WL 510067, at *12 (Del. Ch. Feb. 24, 2006)
(“Although FOIA entitles citizens to notice of public meetings and to attend meetings of public
bodies, FOIA does not mandate that public bodies allow for public comments at any or all
‘meetings. There is nothing in the text of the declaration of policy or the open meeting provision
requiring public comment or guaranteeing the public the right to participate by questioning or
ting during meetings. What is provided by FOIA generally, and by the open meetings
public access to attend meetings.”) (citations omitted).
3Of course, we have previously subjected a public body's actions to First Amendment scrutiny
when the public body allows for public comment at a specific meeting.'? However, your
correspondence fails to allege specifically that the ECHS Board has applied its public policy
procedure in a way that would amount to a FOIA violation. As noted above, you are nevertheless
free to submit a new petition alleging facts that might support a conclusion that the Board has
violated FOIA in its application of its public policy procedure.
Based upon the foregoing, we conclude that your allegation that the Board has prevented
members of the public from attending one or more ECHS Board meetings is too vague to warrant
consideration by this Office at this time. We also conclude that, even if true as a factual matter,
your allegations concerning the ECHS CBOC and the Board’s public comment procedure fail to
allege a FOIA violation, We have nevertheless copied ECHS’s counsel, Board President, and
Head of School on this written determination to advise them of your concerns.
Very truly yours,
E,
lle E. Whalen
Deputy Attomey General
Aaron R. Goldstein, State Solicitor
ce: David Sheppard, Esq., Counsel for ECHS (via email)
Dr. Marsha Horton, ECHS Board President (via email)
Dr. Evelyn Edney, ECHS Head of School (via email)
s See, e.g. Del. Op. Att'y Gen. 16-IB18, 2016 WL 5888777, at *3. We have also
acknowledged that “more recent court opinions have distinguished First Amendment analyses
from the application of FOIA.” See id.
4