Ruling: Little Creek didn’t meet state standards for public records access

Little Creek Town Council holds meetings at the Station 54 volunteer fire company. (Delaware State News/Craig Anderson)

Little Creek Town Council holds meetings at the Station 54 volunteer fire company. (Delaware State News/Craig Anderson)

LITTLE CREEK — Providing meeting minutes at a town secretary’s residence did not meet state standards for public records access, authorities determined early last month.

The Delaware Department of Justice issued the opinion on May 9 in response to Little Creek resident Crystal Smith’s contention that the town violated the Freedom of Information Act by not providing “reasonable access” to cataloged meeting minutes.

The Attorney General’s opinion noted Ms. Smith was not comfortable with the town’s recommendation to view the requested paperwork at its secretary’s home and no suitable location was made available. According to Mayor Glen Gauvry, Ms. Smith’s Main Street residence is within five homes of the secretary’s.

“We’re all neighbors here and everyone knows everyone,” he said on Friday.

The mayor said there are no hard feelings toward Ms. Smith.

“It’s her right to challenge the legality of how the town does business, and it’s her right to expect transparency within the government,” he said. “I respect those rights. It’s on us to find the best way to do that.”

An attempt to reach Ms. Smith via email was unsuccessful.

While the town of Little Creek is not required to post council meeting minutes online, the Department of Justice reasoned no corrective action was required since the requested information was provided by mail to Ms. Smith.

“We note, however, that the town maintains a website that implies such minutes are made available online and therefore we encourage the town to resolve any confusion by either publishing the minutes online or changing its website to remove the implication that it does so,” the Department of Justice said.

Mr. Gauvry said the town must figure out how best to post the meeting minutes, or eliminate the link if they are not available.

“If we add the minutes online it puts an added burden on our secretary who takes them shorthand,” Mr. Gauvry said. “We’re all volunteers, and I’m hesitant to possibly add that much work for somebody.”

Storing paperwork

Mr. Gauvry said the town is exploring how best to store paperwork, which is now kept in a small secured area of the post office on Main Street. There’s not enough room for people to walk in and examine records, he said.

A FOIA issue has never come up before, said Mr. Gauvry, a 10-year Little Creek resident.

“We thought we were in complete compliance with FOIA, but it turns out we were mostly in compliance with FOIA,” Mr. Gauvry. “Total compliance is what we’ll work to achieve.”

Options will be discussed at a town meeting is scheduled for Monday; there’s a possibility that Little Creek Volunteer Fire Company Station 54 could provide space, and Mr. Gauvry said the fire company will be represented.

“We don’t even know if that’s something they would be willing to do,” he said.

Town Council meetings are currently held at the fire station on Main Street.

“We’re a small town, as you know, and it will be a challenge to have some type of a central place” where residents can view records, Mr. Gauvry said. “Also, there’s the question of how do we have a volunteer man the place for a certain period of time.

“The available time might not work for whoever makes the request, so there’s the question of what to do in that situation.”

An attempt to reach Ms. Smith via email was unsuccessful.

The town created its website approximately a year ago to better inform the public and make available information on “everything that we do,” according to Mr. Gauvry.

Requesting information

While involved in a flood elevation certificate issue, Ms. Smith filed a FOIA request with Town Council Secretary Penny Gentry on Oct. 22, 2015, seeking meeting minutes from April 2015 to the present time, the opinion stated.

According to the Department of Justice, the secretary responded an attempt to send or deliver paperwork copies would be made.

“The council secretary also noted that she assumed that it would be possible to post town council meeting minutes online, but stated that someone else would have to do so because she did not believe that she would personally be able,” the Department of Justice cited as facts of the matter.

Due to other obligations, the Department of Justice said, Ms. Smith said she could not attend town council meetings “and had previously expressed your opinion several times that the information should be available online.”

On Oct. 29, 2015, the Department of Justice said, Town Planning Commission member Ed Strouse emailed Ms. Smith the requested certificate and other information provided by the surveyor.

Ms. Smith had a concern regarding the certificate, according to the Department of Justice, and emailed Mr. Strouse on Nov. 3, 2015, and Jan. 13, to express herself.

“Mr. Strouse replied that the town had reached out to the surveyor but had not received a reply,” according to the DOJ.

“Mr. Strouse also stated that he had since resigned from his position with the Town.”

Frustration, no resolution

Ms. Smith then forwarded the response to Mayor Gauvry and others, the Department of Justice said, “expressing your frustration with the lack of resolution regarding your concern with your flood elevation.”

At that point, according to the opinion, Ms. Smith believed the town had violated FOIA. On Jan. 25, the Department of Justice said, the mayor replied via email “specifically requesting that you arrange a meeting with other property owners to discuss the flood elevation certificates.”

Ms. Smith responded she would not schedule a meeting and claimed the town was violating FOIA because it “still does not have public access to all public meetings.”

The situation was “an issue that Mr. Strouse had raised several times during prior town council meetings,” the opinion stated.

On Jan. 25, and still without requested town council meeting minutes, Ms. Smith informed the mayor she was taking the issue to her state representative and the Attorney General.

The mayor forwarded email information on Feb. 2 regarding an upcoming meeting he believed would address Ms. Smith’s concerns, the Department of Justice said, and the resident said she planned to attend.

Ms. Smith followed by emailing state Sen. Colin Bonini, R-Dover, and state Rep. Bill Carson, D-Smyrna, expressing “concerns regarding the town council members’ adherence to FOIA’s open meeting provisions.”

Despite clicking on a link at the town of Little Creek’s website, Ms. Smith said she could not access town minutes. She previously had expressed concerns to the mayor and town council members, the Department of Justice said, and was told the town was not required by FOIA to post minutes online.

Going to officials

Ms. Smith also informed Sen. Bonini and Rep. Carson she was told the meeting minutes “were only available for you to view at the council secretary’s house, which you did not feel comfortable doing.”

“We offer no opinion whether the town office or fire hall could provide ‘reasonable access to and facilities for copying’ the town council’s public records,” the Department of Justice concluded.

The Department of Justice’s opinion was sent to Ms. Smith by Deputy Attorney General Michelle E. Whalen.

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