January 28, 2004
Civil Division-Kent County
Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Re: Freedom of Information Act Complaint Against City of Newark
Dear Mr. Porach:
Our Office received your Freedom of Information Act (“FOIA”) complaint on November 25, 2003 alleging that the City of Newark (“the City”) violated FOIA by not providing timely notice to the public of a special meeting on November 20, 2003.
By letter dated December 1, 2003, we asked the City to respond to your complaint. We received the City’s response on December 17, 2003. We received a supplemental response from the City on January 7, 2004.
The City provided us with a copy of a Memorandum Opinion dated November 17, 2003 in Newark Landlord Association v. Bauscher et al., Del. Ch., C.A. No. 17583-NC (Noble. V.C.). In that litigation, the landlord association sued the members of the City council to enjoin enforcement of an ordinance regulating off-campus student housing. Vice Chancellor Noble held that the ordinance violated the Delaware Fair Housing Act because it discriminated on the basis of marital status.
On November 19, 2003, the City posted notice of a special meeting to be held at 5:00 p.m. on November 20, 2003 to discuss amending the municipal housing code in light of the Chancery Court decision. (You provided us with a copy of that notice as well as the minutes of the November 20, 2003 special meeting). The minutes of the special meeting show that the Council voted unanimously to impose a temporary moratorium on new rental permits until the Council had the opportunity to amend the municipal housing code to comply with state law.
According to the City, “[a]fter being advised of the [Chancery] Court’s decision” on November 17, 2003, “the Mayor determined that the absence of any authority over the further proliferation of rental properties in residential neighborhoods constituted an exigent situation. At that point in time, there was essentially a vacuum with respect to the City’s lawful authority to exercise its power to control certain zoning and land use practices.” The City therefore decided “that a special meeting of the City Council should be scheduled to address that vacuum.”
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.” 29 Del. C. § 10004(e)(2) (emphasis added). For special meetings, FOIA requires a public body to give notice “as soon as reasonably possible, but in any event not later than 24 hours before such meeting.” Id. § 10004(e)(3). The public notice of a special meeting “shall include an explanation as to why the [normal seven days notice] could not be given.” Id.
FOIA “requires only a reason, not a specific detailed factual basis, why the seven-day [notice] requirement could not be met.” Att’y Gen. Op. 94-IO37 (July 26, 1994). “But we have consistently found a FOIA violation where the notice failed “‘to provide any explanation whatsoever concerning the reason why the normal seven day notice requirement could not be given.’” Att’y Gen. Op. 98-IB05 (July 6, 1998) (quoting Att’y Gen. Op. 94-IO37 (July 26, 1994) and citing Att’y Gen. Op. 96-IB15 (May 10, 1996) and Att’y Gen. Op. 97-IB18 (Sept. 2, 1997)).
Clearly, the City has shown “exigent circumstances or compelling need for the [public body] to hold a ‘special’ meeting.” Att’y Gen. Op. 00-IB07 (Apr. 28, 2000. See Att’y Gen. Op. 01-IB02 (Jan. 30, 2001) (town properly called a special meeting to consult with its solicitor because the time to appeal a court decision would have expired by the time of the town’s next regularly scheduled meeting); Att’y Gen. Op. 03-IB16 (Aug. 8, 2003) (“we will accept the Town’s representations about the urgency of the road improvement matter”). After the Chancery Court’s decision on November 17, 2003, the City was faced with exigent circumstances which could not wait to be addressed until the next regular meeting of the City Council (scheduled for December 8, 2003). The City took immediate steps to place a temporary moratorium on the issuance of new rental permits so as not to violate state law.
The City, however, does not dispute that the notice for the November 20, 2003 special meeting did not state an explanation why seven-days’ notice could not be given. We find therefore that a technical violation of FOIA occurred. Conclusion
For the foregoing reasons, we determine that the City violated the open meeting requirements of FOIA by not providing an explanation in the notice of the November 20, 2003 special meeting why seven days advance notice could not be given. We do not believe that any remediation is required because the City Council met on December 22, 2003 and lifted the moratorium adopted at the special meeting on November 20, 2003. According to the City, “[i]n the interim the Council had amended a City ordinance found to be flawed by the Court of Chancery. That flaw was removed at a meeting of the City Council on December 8, 2003.” Under the circumstances, remediation would not serve any purpose at this time.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Lawrence W. Lewis, Esquire
Deputy Attorney General
Roger A. Aiken, Esquire
Phillip G. Johnson