Town of Fenwick Island

Public Comment Segment of the Council Meeting

How and why does FOIA prohibit Council from responding to public comments at the meeting?

There is not a specific section of FOIA that expressly prohibits this. The guidance regarding matters raised during public comment and the fact that they should not be discussed comes from Attorney General (AG) opinions construing FOIA and ties into the FOIA requirement that meetings and what will be discussed at meetings be properly noticed.

These AG opinions essentially say that members of the public, exercising their First Amendment rights, can raise all sorts of issues and topics during a public comment portion of a meeting. If the issue or topic raised was not specifically noticed for public discussion on the meeting agenda, then there must be a compelling reason why discussion cannot wait until a later meeting to allow for proper notice under FOIA. This way, all interested parties to the issue or topic raised are informed about and given the opportunity to observe and/or participate in the discussion.

In the past, some public comments resulted in substantive discussions and question/answer sessions about hot topics. In the recent past, the hotel or other zoning issues have usually been the hot topics raised during public comment. The hotel is considered a substantial matter, as are most issues involving zoning.

The AG opinions does allow for discretion in responding to simple questions or making announcements regarding future events. Exercising this kind of discretion can be tricky. Accordingly, pursuant to advice from our attorney, the Council is taking a cautious approach by receiving comments or information presented during public comment and placing the issue or topic raised on a later agenda if the Town believes it warrants further discussion or action.

If you have questions or concerns regarding this information, please contact Teresa Tieman, Town Manager at 302-539-3011 ext. 203.