August 28, 1997

New Castle County - Civil Division

Jeffrey M. Weiner, Esquire
1332 King Street
Wilmington, DE 19801


RE: Freedom of Information Act Complaint
 Against City of New Castle


Dear Mr. Weiner:

By letter dated July 21, 1997, you alleged, on behalf of
Wilmington Fraternal Order of Police Lodge # 1, that the Council
of the City of New Castle ("the City") had violated the open
meeting requirements of the Delaware Freedom of Information Act,
29 Del. C. Sections 10001-10005 ("FOIA"), by holding meetings
without giving notice to the public.

By letter dated July 31, 1997, we asked the City to respond to
your complaint. By letter dated August 6, 1997 (received by this
Office on August 11), the City responded, enclosing copies of the
notices of seven meetings held in July and August, 1997. The City
denies that these were meetings of the City Council, but rather
were meetings of the City's Public Safety Review Committee, only
one of whose three members is also a member of the Council.

By letter dated August 14, 1997, you clarified your allegations
of FOIA violations by the City. You allege that the City failed
to give notice of a meeting of the Public Safety Review Committee
on July 17, 1997 (although you do not contend that the City
failed to give notice of other meetings that same week) to
interview police officers. You also allege that "the Notices
posted by City Council did not set forth any agenda nor specific
issues to be addressed."

STATUTORY PROVISIONS

FOIA requires that "[a]ll public bodies shall give public notice
of their regular meetings and of their intent to hold an
executive session closed to the public, at least 7 days in
advance thereof. The notice shall include the agenda, if such has
been determined at the time, and the dates, times and place of
such meetings; . . . ." 29 Del. C. Section 10004(e)(2). FOIA,
however, provides that "the agenda shall be subject to change to
include additional items arising at executive sessions of the
deletion of items including executive sessions which arise at the
time of the public body's meeting." Id. 

FOIA defines "agenda" to "include but is not limited to a general
statement of the major issues expected to be discussed at a
public meeting, as well as a statement of intent to hold an
executive session and the specific ground or grounds therefor
under subsection (b) of Section 10004 if this title." 29 Del. C.
Section 10002(f).

FOIA defines a "public body" to include, among other things, any

"committee" established by "any body established by the General
Assembly of the State" or "appointed by any body."
 
OPINION

The City does not dispute that the Public Safety Review Committee
is a "public body" for purposes of the open meeting requirements
of FOIA.

On July 9, 1997, the City posted notices stating that the "New
Castle City Public Safety Review Committee will meet at the
following times, with members of the City Public Safety
Department and will be followed by an Executive Session pursuant
to Section 10004(b)(9) unless the respective Officer requests
that (his/her) interview be open to the public as provided in
Section 1004)(b)(9)." The notice listed various times for these
meetings on July 14, 15, 16, and 18, 1997. 

With respect to the meetings on July 14 and 15, the City did not
give notice at least seven days in advance as required by FOIA.
Although FOIA permits notice of a special or rescheduled meeting
to be posted 24 hours prior to the meeting, see 29 Del. C.
Section 10004(e)(3), there is nothing in the City's response to
the complaint indicating that the meetings scheduled for the week
of July 14 were a special or rescheduled meeting, that is, "one
to be held less than 7 days after the scheduling decision is
made." Id. 

Furthermore, the notices for all the meetings scheduled for the
week of July 14 do not contain the required agenda. Although FOIA
allows a public body to add or delete items from the posted
agenda if they arise at the public meeting, the Public Safety
Review Committee knew in advance the matters that would be
discussed in its meetings scheduled for the week of July 14.

In Ianni v. Department of Elections of New Castle County, Del.
Ch., 1986 WL 9610 (Aug. 29, 1986) (Allen, C.), the county posted
a one-page notice stating that the Department of Elections would
meet to consider the "primary election." At the meeting, the
Department voted to open fewer polling stations in New Castle
County in the primary elections. Chancellor Allen held that the
notice of the agenda was insufficient "to alert the public to the
fact that the [Department] would consider and act upon a proposal
to consolidate election districts for the purpose of the primary
election. While the statute requires only a 'general statement'
of the subject to be addressed by the public body, when an agency
knows that an important specific aspect of a general subject is
to be dealt with, it satisfies neither the spirit nor the letter
of the Freedom of Information Act to state the subject in such
broad generalities as to fail to draw the public's attention to
the fact that specific important subject will be treated. In this
instance, all that would have been required to satisfy this
element of the statute would have been a statement that 'election
district consolidation' or 'location of polling places' was to be
treated." 1986 WL 9610, at p. 5. 

The City suggests that the agenda for the meetings noticed for
the week of July 14, 1997 is implicit in the notice since Public
Safety Review Committee oversees police matters and the notice
stated that the Committee would go into executive session
pursuant to Section 10004(b)(9) of FOIA (the exception to discuss

personnel matters). This Office, however, has previously
determined that merely giving notice that a specific committee of
a public body will meet does not satisfy the agenda requirement
of FOIA because that does not sufficiently alert the public as to
the major issues expected to be discussed at a public meeting.
See Att'y Gen. Op. 97-IB13 (June 2, 1997).

In your letter dated August 14, 1997, you also allege that the
meeting noticed for July 16, 1997 was in fact held on July 17, so
that the City failed to give any notice to the public of the
meeting on July 17. From your letter, it appears that there was a
last-minute scheduling conflict with one of the police
interviews, which was re-scheduled for the convenience of the
parties. Although a technical violation of FOIA, we do not find
that it requires any remediation. Police interviews were ongoing
all week, and any member of the public who was attending could
have easily ascertained the schedule change. The affected police
officers obviously were aware of the change.

We also find that the failure to post notice seven days in
advance of the meetings on July 14 and July 15 was a technical
violation of FOIA that does not warrant the remedy of re-noticing
the meetings held on those dates. While we do not condone any
deviation from the letter of the law, there is no evidence that
the City acted in bad faith, or that any member of the public who
wished to attend the meetings of those dates was deprived of the
opportunity because he or she did not have timely notice.

The lack of any agenda in the notices is more troubling. We find
that the City violated the notice requirements of FOIA by not
including a general statement of the major issues to be discussed
at the meetings the week of July 14 sufficient to alert the
public as to matters of public concern. We do not believe,
however, that remediation is necessary, especially since the
public would not have been able to observe most of the meetings
held the week on July 14 while the Public Safety Review Committee
was in executive session. Moreover, there is no evidence to
suggest that the City Council took any action based on the
interviews of police officers the week of July 14. To require the
Public Safety Review Committee to re-notice its meetings and
interview again the same police officers would not serve to
further the purposes of FOIA.

We caution the City, however, that in the future it must comply
with all requirements of the open meeting law. Specifically, the
City must give notice at least seven days in advance of meetings
of the City Council or any of its committees, unless FOIA
authorizes a shorter time. In addition, the City must include in
all notices of public meetings an agenda that will include a
general statement of the major issues expected to be discussed at
the meeting.
Conclusion

For the foregoing reasons, we determine that the City violated
the open meeting requirements of FOIA by: (1) failing to give the
public notice at least seven days in advance of the July 14 and
July 15, 1997 meetings of the Public Safety Review Committee; and
(2) failing to include an agenda in the notices of the meetings
for July 14, 15, 16, and 18, 1997. The City is directed to
strictly comply with the notice requirements of FOIA in the
future.


Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED:



___________________
Michael J. Rich
State Solicitor

cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
Mayor John F. Klingmeyer
Elizabeth A. Bacon, Opinion Coordinator




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