KNOW YOU FOIA RIGHTS: Constructive Quorums Violate both the Spirit of and Purpose of Open Meeting Laws

From the Office of the Attorney General, previous FOIA finding on serial board meetings and constructive quorums:

Our Office has previously determined that a public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body “to receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take.”

Att’y Gen. Op. 03-IB11 (May 19, 2003) (exchange of e-mails between the three members of a nominating committee over a two-day period). For serial discussions to amount to a constructive quorum, there must be “an active exchange of information and opinions” as opposed to “the mere passive receipt of information.”

Id. “It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum.”

Att’y Gen. Op. 06-ID16 (Aug. 7, 2006). Serial discussions may amount “to a constructive quorum of the public body when there was an active exchange of thoughts and opinions and members were asked to vote or adopt a particular point of view or reach a consensus on what action to take.”

Id. In Att’y Gen. Op. 04-IB10 (Oct. 18, 2004), a member of the county council drafted amemorandum proposing to allocate $15 million to the City of Wilmington for law enforcement and then circulated a copy of the proposal to the other six members of the council. Four members of the council signed the proposal which stated it “represents a consensus” based on telephone conversations among members of the council. Our Office determined “that those serial telephone calls amounted to a meeting of a quorum of the council in violation of [FOIA].”

In Att’y Gen. Op. 05-IB03 (Feb. 3, 2005), a member of the town council drafted a lettercritical of another member of the council and circulated it to three members of the five-member council, following up with telephone or face-to-face conversations to see if they agreed with her position. Our Office determined that “these contacts were more than the passive receipt of information” and “the sum of these communications amounted to a meeting of a public body covered by FOIA.”

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