DELAWARE - The Delaware Department of Justice has determined that the Association of Coastal Towns (ACT) violated Delaware’s Freedom of Information Act (FOIA) requirements, deeming ACT a public body subject to FOIA.
The decision came in response to a petition submitted by South Bethany homeowner Edward Bintz, alleging that ACT failed to meet FOIA’s open meeting requirements, denying citizens the opportunity to observe or participate in matters related to US Wind’s offshore wind project. The petition highlighted that ACT was created by member municipalities, is controlled by them and is supported by government funds, making it a public body under FOIA. The group includes officials from seven coastal towns: Bethany Beach, Dewey Beach, Fenwick Island, Henlopen Acres, Lewes, Rehoboth Beach and South Bethany.
The petition asserted that ACT held non-public meetings on December 5 and December 20, 2023, without appropriate public notice or participation, and failed to maintain meeting minutes. Additionally, it alleged that ACT’s two-member US Wind Committee held a non-public meeting on December 1, 2023.
The Delaware Department of Justice (DOJ) found that ACT did not provide sufficient evidence to demonstrate compliance with FOIA’s open meeting requirements for the mentioned meetings. Consequently, violations were confirmed.
ACT, through its legal counsel, argued in its response that it is "a voluntary organization consisting of members from various coastal towns in Delaware," not a public body, and thus not subject to FOIA. However, the determination concluded that ACT is a public body because it was established by bodies created by the General Assembly and collects and disburses public funds.
The authority to invalidate a public body’s action, or to impose other relief, is reserved for the courts. The Delaware Court of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties."
In response to the violations, the Delaware DOJ recommended that ACT and its US Wind Committee discuss items considered at noncompliant meetings and ratify any votes at a future meeting held in compliance with FOIA. Additionally, ACT was advised to appoint a FOIA coordinator, implement a FOIA request policy and create an online portal for accepting FOIA requests.