February 12, 1997 Civil Division-New Castle County
Sent via facsimile and first class mail.
Roger A. Aiken, Esq.
P. O. Box 390 Newark, DE 19715-0390 Re: Freedom of Information Act Inquiry Dear Roger: On February 11, 1997 you addressed a letter to the Attorney General requesting the Department of Justice's position concerning a proposed meeting between DelDot officials and "local elected officials" for Thursday, February 13, 1997 at 7:30 p.m. in the city council chambers to discuss DelDOT's plans for the intersection of Elkton Road, New London Road, Main Street and a railroad crossing. Your concern was whether the attendance by council at a meeting called by DelDOT would constitute a FOIA violation in light of our ruling of January 2, 1996. In your letter you also stated that we never responded to your letter of July 29, 1996 requesting a modification of our January 2nd opinion. As a result of our phone discussions, we determined that my letter of October 17, 1996, which was mailed to your address at the city of Newark, was apparently not received. A copy of that letter enclosed. Under 29 Del. C. § 10005(e), we are considering your request as a petition to determine whether a FOIA violation has occurred or is about to occur. As you may also know, under that section, subsection (e) does not apply to potential or alleged violations of state agencies which are represented by our office. Based on information which was published in newspapers of record and considering case law which suggests that meetings of the type discussed in your letter of February 11th would subject the city to a potential complaint of FOIA violation, we believe that the meeting scheduled for February 13, 1997 can go forward as planned if the city will issue a notice at least 24 hours in advance of the meeting pursuant to Section 10004(e)(3). Under that subsection, a public notice of a special meeting shall include an explanation as to why the required seven day notice was not given and it is our opinion that it is a sufficient explanation to state that an earlier notice was not possible because legal opinions had not been obtained from the City Solicitor and the Attorney General prior to the posting of the notice. If such a notice is posted by the close of business today, February 12, 1997, it is our opinion that a FOIA violation will not occur and that the meeting may go forward as scheduled. It is also our understanding that DelDOT will also issue a similar notice since it is the agency which set up the meeting. It would still be appropriate for the city to publish a notice of a meeting of its council for the same time setting forth the receipt of information from DelDOT as a purpose for the meeting. Please feel free to call me if you have any further questions concerning this matter. Very truly yours, Michael J. Rich State Solicitor Enclosure cc: Hon. M. Jane Brady, Attorney General Keith R. Brady, Chief Deputy Attorney General Michael W. Tupman, Deputy Attorney General Frederick H. Schranck, Deputy Attorney General
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