October 20, 1997 New Castle County - Civil Division Mr. N. Dean Dey 59 Edgewater Drive Lewes, DE 19958 RE: Freedom of Information Act Complaint Against Cape Henlopen School District Dear Mr. Dey: On September 15, 1997, we received your letter alleging that the Cape Henlopen School District (the "School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001-10005 ("FOIA"), by holding a meeting on September 11, 1997 without giving proper notice to the public. Specifically, you allege that the agenda posted did not disclose that the School District might vote at that meeting to spend public monies for new locally-funded teaching positions. By letter dated September 16, 1997, we asked the School District to respond to your complaint. By letter dated September 23, 1997 (received by this Office on September 24), the School District responded, enclosing copies of the agenda for the meeting and the written minutes. The School District denies that it violated FOIA since the act provides that an agenda shall be subject to change, and a public body can add items to the agenda that arise during a meeting. According to the School District, "[t]he issue of whether the Board should hire additional teachers to reduce class size arose at the meeting" on September 11, 1997. The discussion started with concerns about class size. The issue then arose about adding teachers to reduce class sizes. "At that point, the public discussion continued ultimately resulting in the adoption of a motion to hire locally funded teachers." 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 including executive sessions or 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). OPINION In Ianni v. Department of Elections of New Castle County, Del.
Ch., C.A. No. 8590, 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." Ianni, 1986 WL 9610, at p. 5. The School District suggests that the issue of using local monies to fund new teaching positions was within the agenda item, "Class Sizes and Enrollment." We do not think that this general item satisfies the Ianni test by alerting the public that a significant amount of public monies might be spent on new teachers. The issue, then, is whether the School Board could add this new item to the agenda after the start of the meeting on September 11, 1997. As this Office has previously determined, "FOIA does not limit the ability to make changes to the agenda to cases where the agenda specifically states that it is subject to change." Att'y Gen. Op. 95-IB35 (Nov. 2, 1995). A public body has discretion to determine the agenda for any public meeting and to make additions, corrections or deletions, if necessary, at the next regularly scheduled meeting when the minutes are adopted. See Att'y Gen. Op. 94-IO23 (June 21, 1994). If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation. As the School District explains, the discussion at the September 11, 1997 meeting about class sizes and enrollment continued "so that numbers could be discussed in relation to this issue. At that point, the public discussion continued ultimately resulting in the adoption of a motion to hire locally funded teachers" in order to reduce class size. An agenda serves the important function of notifying the public of the matters which will be discussed and possibly voted on at a meeting, so that members of the public can decide whether to attend the meeting and voice their ideas or concerns. It is not always possible, however, to anticipate every permutation of every issue contemplated for discussion, and FOIA permits a public body to add items to the agenda if they arise at the meeting and are reasonably related to items that were noticed in the agenda. At some point, the issues may so far depart from the issues noticed on the agenda that they are better reserved for the next meeting of the public body so that the public will have adequate notice. The meeting on September 11, 1997 was attended by a number of parents and teachers, including the complainant, who voiced his objection to the decision to use local monies to fund new teaching positions. We do not find that the public was misled by the agenda for the September 11, 1997 meeting, or that any interested person did not attend because he or she was not fully aware what might be discussed. Furthermore, we find that the discussion of class sizes and enrollment naturally evolved into a discussion of whether more teachers might be necessary and, if so, how to fund their salaries. The School Board added the funding issue to the agenda during the course of the meeting, consistent with Section 10004(e)(2) of FOIA. Conclusion For the foregoing reasons, we determine that the School District did not violate the public notice and agenda requirements of FOIA in connection with the September 11, 1997 meeting. 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 David H. Williams, Esquire Chrystyna Lafferty, Opinion Coordinator
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