At a recent workshop, Milford City Council received training on Freedom of Information Act (FOIA) for public officials. The training provided insight into how strict the rules related to FOIA, and the penalties should those rules be violated. The presentation was also provided to staff earlier in the day.
“FOIA is sort of the bane of the municipal existence because it is something that makes everything sort of difficult that is sometimes easy in the private sector,” Max Walton, Esquire, a partner with Connolly Gallagher LLP, said. “It really only has two components. Yo have open meetings and open records. That’s all it is about. The General Assembly has told us we have FOIA because in an open and democratic society, we need to be able to observe you guys who are elected in your official capacity once you do business and to monitor decisions.”
Walton continued, explaining that another reason for FOIA is to provide the public with easy access to public records, but that this requirement was not as easy as it sounded. He explained that records that could be released under FOIA fall under pretty broad standards, but basically covered information discussed by any public body.
“Everybody knows council is a public body, and that includes any board, committee, sub-committee or panel, like the planning commission,” Walton said. “It is when you get into these sub-bodies that issues can arise. You guys set committees to look at stuff, like it could be a big tree on the campus or an event at the library. Sometimes, you bring citizens onto the committee. All those are public bodies, and it does not need a public statement from council to make it a public body, but if you are setting up committees to do X Y and Z, it falls under FOIA”
One example given was in Lewes where a Museum Review Committee was set up consisting of the mayor, council secretary and a resident. This was a group that did not represent a quorum of council, but it was deemed a public body that required an agenda, minutes and all the other FOIA requirements. For this reason, Walton stated that every committee or sub-committee should be considered a public body.
“This one is a bit perplexing to me whether it should have been considered a public body,” Walton said. “In Christina School District, they were hiring a new superintendent. The president and vice-president sat down with the person they hired to negotiate salary, when they would start, etc. Someone said “well, that’s illegal.” Well, someone has to negotiate with the person. The AG’s office said that there should have been an official committee appointed to do that, so this was a FOIA violation.”
According to Walton, the result of the Christiana School District violation was that board members must be approved to engage in negotiations with candidates if the entire board was not included. Recently, Milford’s hiring of a city manager was the subject of controversy. There were reports that there was a local candidate passed over for the position and, according to inside sources, Milford council members discussed the position with the unsuccessful candidate outside of council meetings. The explanation given by Walton indicates those discussions could be considered a FOIA violation even if the council member was unaware of the regulation.
“It really is not hard to have an agenda and minutes,” Walton continued. “One thing to do if you have an obscure committee and you appoint a resident to that committee, you tell them that they are now subject to FOIA. Because, many times, if that committee receives a FOIA, the resident is shocked that they now have to produce all their emails.”
Walton pointed out that as public officials, council needed to be extremely careful with what they included in emails. He stated that when he did an electronic search during discovery for a case, he runs a list of cuss words through the database because using foul language in an email can be used against council in court.
“If you need to cuss somebody, pick up the phone and yell at them,” Walton said. “Just remember that everything you say will come out because you are a public official. It’s even text messages. Even if you think an email or text will not see the light of day, it can be leaked and it can be released in FOIA.”
All agenda items should be posted at least seven days prior to meetings, Walton stated, but there was a mechanism to amend an agenda at the last minute as long as it was acknowledged at the meeting and a footnote added to the agenda.
“Minutes do not have to be verbatim, but they are required, even for executive sessions,” Walton said. “Executive sessions are very closely scrutinized and must have an agenda as well as all the other requirements. You can go into executive session to discuss a citizen’s qualifications to do a job you are hiring for, but that does not include hiring solicitors or discussing strategy for a legal case or collective bargaining. An executive session should only be called when an open meeting would have an adverse effect on the volume or litigation position of the public body.”
According to Walton, everything the public body did had the potential for litigation, so the Attorney General’s office has ruled that litigation must be likely or reasonably foreseeable to qualify something for executive session. Information provided in the council packet stated that minutes must be taken during executive session and those minutes are considered public record. According to the city clerk’s office, Milford stopped recording executive session a few years ago.
“Documents that are exempted are attorney-client privilege, medical files, medical history, those kind of things, HIPAA documents,” Walton said. “If you read that personnel matters, including competency and abilities of individual employees unless the employee or student requests the meeting to be open, means that it is exempt, that means you have to tell the employee you are having a hearing. The AG’s office has held that you do not have to tell the employee. If you go into executive session, it has to be on the agenda and it has to have a statutory explanation, so if you are going to discuss personnel, that has to be on the agenda. If you are going to hire someone, it has to be on the agenda.”
In addition, Walton stated that no votes can be taken during executive session but must be made in public session. During executive session, only items on the agenda may be discussed.
“I’ve been in executive session which was supposed to be about litigation and we’re talking about Trudy in accounting and how she can’t do her job, or all these other things,” Walton said. “You can’t do that. I’ve kind of shut people down. I know you’ve been in discussions like this where you are talking about this and then you are talking about that.”
Straw polls, an unofficial ballot that tests opinions, are also forbidden in executive session. Walton explained that this could be where the city solicitor makes a recommendation, and council goes around the room in executive session expressing how they would vote on that recommendation.
“When you do that, guess what you are doing? You are counting the votes,” Walton said. “So, what I try to do is make the proposal and ask if anyone has any strenuous objections. If there are none, we move forward but if there are, I make the body go out in public to vote.”
Walton pointed out that everything is a public record including salaries of public officials. One area that has caused consternation among local officials is that, while all their emails are subject to FOIA, emails sent and received by the General Assembly, or their staff are not subject to FOIA. Walton also pointed out that council cannot go into executive session to discuss interview questions as they must be discussed in public.
“The AG’s office can file a FOIA suit which they don’t do very often,” Walton said. “If that happens, you could be subject to attorney fees, forfeit compensation and other penalties.”
