The attorney general has evaluated several instances of whether electronic communications constituted “meetings” under the Delaware FOIA.
When two county council members, who did not constitute a quorum of the council, exchanged messages, it was not considered to be a meeting subject to FOIA. However, a phone call between six members did constitute a meeting under the law. In that opinion, the attorney general said, “We caution all public bodies to be careful not to discuss matters of public business by electronic means in such a way as could violate the open meeting requirements of FOIA.” Del. Op. Atty. Gen., 04-IB17, 2004 WL 2639714 (Del. A.G. Oct. 18, 2004).
Electronic communications need not occur in “real time,” such as instant messaging, chat or communications similar to a telephone conference call, to constitute a meeting. Three members of a nominating committee (constituting a quorum) who exchanged a series of e-mail messages over two days, resulting in a consensus of names to submit to the city council, were deemed to have held a meeting under FOIA. Del. Op. Atty. Gen. 03-IB11, 2003 WL 21431171 (Del. A.G. May 19, 2003).
Because electronic messages meet the criteria for “public records” set forth in 29 Del. C. § 502(7), they, like other records, may be subject to all provisions of Delaware’s Public Records Law, 29 Del. C. § 501-526. Accordingly, for purposes of retention and back-up, e-mail is treated the same as paper records under 29 Del. C. § 501(c).
However, a 2006 attorney general opinion suggested there was no duty to retain e-mail that may have qualified as a public record. Because the requested e-mail messages had been deleted, the attorney general said the open records law was not violated when the agency was unable to produce the e-mail. Del. Op. Atty. Gen., 06-ID23, 2006 WL 3663142 (Del. A.G. Nov. 27, 2006).