New Castle County
June 3, l996
Del. Op. Atty. Gen. 96-IB19 (Del.A.G.), 1996 WL 345784
(finding violations of FOIA where town council did not (a) provide the public with notice of a contemplated vote on proposed zoning changes, (b) disclose in the agenda its intent to convene in executive session, (c) provide in the agenda the purpose of the executive session and (d) affirmatively and publicly vote to enter executive session)
Mr. Kirk Albertson The Honorable Scott G. Nichol
1810 Jebb Road Mayor
Wyoming, DE l9934 Town of Camden, Delaware
261 Camden-Wyoming Avenue
P.O. Drawer 1002
Camden, DE l9934
Ms. Janice Nichol Glenn E. Hitchens, Esquire
RD 2, Box 60 Morris, James, Hitchens & Williams
Camden, DE l9934 32 W. Loockerman Street, Suite 202
Dover, DE l9904
RE: Freedom of Information Act Complaint
Town of Camden/Camden Town Council
Public Hearing of December 5, l995
Ladies, Gentlemen and Counsel:
This letter will serve as the Attorney General’s final written determination pursuant to 29 Del. C. section 10005(e). While the complaint raised several allegations of improprieties, the Attorney General’s jurisdiction in this matter is limited in scope to address only those allegations pertaining to Chapter 100, Title 29, Delaware Code. Hence, only those allegations which present possible Freedom of Information Act violations will be addressed.
In pertinent part, the complaint alleges that the Camden Town Council (“Council”) held a public hearing on December 5, l995 to consider a re-zoning request to develop a manufactured housing community (a mobile home park). It is alleged that the meeting was held without proper notice in that it was held within 24 hours of the completion of the Camden Planning Commission’s review. It further alleges that the Council held an executive session without proper notice of such on the meeting agenda and without an affirmative vote of all the members of the Council. The executive session, it is alleged, was used to persuade undecided members of the Council to vote in favor of the rezoning.
Upon review of the complaint, this office identified the following allegations of potential Freedom of Information Act (“FOIA”) violations.
a) A potential violation of 29 Del. C. section 10004(e)(2), in that it is alleged that the Camden Town Council failed to provide adequate notice of the public hearing and its intent to hold an executive session closed to the public; and,
b) A potential violation of 29 Del. C. section 10004(e)(4), in that it is alleged that the Camden Town Council failed to properly post the notice and agenda of the public hearing; and,
c) A potential violation of 29 Del. C. section 10004(c), in that it is alleged that the Camden Town Council did not obtain an affirmative vote of a majority of members present prior to holding its executive session.
The Council, through the Mayor of Camden, was notified of the complaint by this office on March 12, l996, and asked to respond to the complaint’s allegations and provide relevant public documents and information pertaining to the allegations. By correspondence mailed March 21 and 22, l996, the Council, through its attorney, Glenn E. Hitchens, Esquire, acknowledged receipt of the complaint and responded.
The Council concedes that its notice did not include the executive session in the agenda, however, it contends that pursuant to 29 Del. C. section 10004(e)(2) there was no violation of the FOIA. The Council further contends that the notice was properly posted and in a timely manner. It concedes that there may not have been an affirmative vote of Council to enter into the executive session, but contends that all the members of the Council were in agreement to hold it.
Upon investigation and review of the public documents and information submitted by the Council, the Board identified a fourth potential violation,
d) A potential violation of 29 Del. C. section 10004(f), in that the Camden Town Council failed to maintain minutes of the executive session conducted on December 5, l995.
The Council, through its attorney, indicated that the minutes of the executive session had not been prepared due to litigation over the subject matter of the December 5, l995 meeting.
Subsequent to the receipt of the Council’s information, this office determined that additional information was required. On April 10, l996, as part of its continuing investigation pursuant to 29 Del. C. section 10005(e), this office requested a copy of the notice of the public hearing, as well as the dates of posting and the minutes from the Council meeting where the decision to schedule the public hearing was made. On April 25, l996, Mr. Hitchens responded by FAX with the notice and agenda for the December 5, l996 meeting (attached as Exhibit A). He indicated that the meeting was not scheduled at a regular meeting, but through the Town Administrator. He further indicated that the notice was posted at the Town Hall on November 17, l995 and published in the Delaware State News on November 20, l995 and November 30, l995.
After due consideration of the public documents and information received as well as the allegations in the complaint as distilled above, this office concludes that the Freedom of Information Act was violated by the Camden Town Council. Each of the allegations indicated above will be addressed in turn.
THE LAW
§ 10002. Definitions.
(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.
(b) “Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power.
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(e) “Meeting” means the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.
(f) “Agenda” shall 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 § 10004 of this title.
§ 10003. Examination and copying of public records.
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
§ 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
(b) A public body may call for an executive session closed to the public pursuant to subsections (c) and (e) of this section, but only for the following purposes:
(1) Discussion of an individual citizen’s qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open. This provision shall not apply to the discussion by a licensing board or commission which is subject to the provisions of § 8810 of this title, of an individual citizen’s qualifications to pursue any profession or occupation for which a license must be issued by the public body in accordance with Delaware law;
(2) Preliminary discussions on site acquisitions for any publicly funded capital improvements;
(3) Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension;
(4) Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body;
(5) Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor;
(6) Discussion of the content of documents, excluded from the definition of “public record” in § 10002 of this title where such discussion may disclose the contents of such documents;
(7) The hearing of student disciplinary cases unless the student requests a public hearing;
(8) The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing;
(9) Personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.
(c) A public body may hold an executive session closed to the public upon affirmative vote of a majority of members present at a meeting of the public body. The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section. Executive sessions may be held only for the discussion of public business, and all voting on public business must take place at a public meeting and the results of the vote made public.
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(e) (1) This subsection concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to the General Assembly.
(2) All 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 places of such meetings; however, 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.
(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.
(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.
(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.
(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.
DECISION AND ORDER
As to the first alleged violation, this office finds that there has been a violation of section 10004(e)(2). This section provides that public notice, including the agenda and intent to hold executive sessions, shall be given at least seven (7) days in advance of the meeting. Counsel for the Camden Town Council (“Council”) has represented that as this was not a regular meeting of the Council that no “specific” agenda was prepared. Counsel further represents that the notice was posted on the bulletin board of the Town Hall on November 17, l995 as well as other prominent public places in the community. While the time provisions of section 10004(e)(2) were satisfied in this situation, the notice provisions were not. The agenda was insufficient.
First, there was no notice of the Council’s intention to go into executive session, its reasons for the executive session or even a notice under section 10004(e)(2) that it could go into an unplanned executive session for purposes enumerated under section 10004(b)(4). Second, there was no notice of any amendments to the agenda or a revised agenda posted. Third, there was no notice on the agenda that the Council would be voting on the proposed zoning changes. While this was not a “regular” meeting of the Council, it was nonetheless a meeting of a public body as defined under section 10002, and compliance with all the pertinent provisions of section 10004 was required.
As to the second alleged violation, this office finds that there has been no violation of section 10004(e)(4). That section provides that the public notice must be posted at the principal office of the public body holding the meeting. According to the representations of counsel, the notice and agenda of the public hearing (while flawed) were posted on November 17, l995 at the Town Hall.
As to the third alleged violation, this office finds that there has been a violation of section 10004(c). That section provides that an executive session closed to the public may be held upon an affirmative vote of the members present at the meeting. Upon review of the taped recording of the meeting, there is no question that the executive session was held without an affirmative vote of the majority of the members present. It is noted that the minutes of the December 5, l995 public hearing inaccurately represent that a unanimous and favorable vote was recorded. In addition, section 10004(c) was violated in that the purpose of the executive session was not set forth in an agenda.
Counsel for the Council admits no such notice was provided, however, counsel contends that under the provisions of section 10004(e)(2), the agenda was subject to change including executive sessions which arose at the time of the meeting.(1) The Council’s reliance upon this provision under the circumstances of its meeting is misplaced. Even with this provision, the Council was required to announce the reason for the executive session as well as state whether the open meeting would have an adverse effect on the bargaining or litigation position of the Council. In this instance, the reason for the executive session was stated as being “to kick this around” and was seconded without an affirmative vote. As an afterthought, someone added “and to listen a bit to our legal counsel.” These statements were clearly insufficient to satisfy the requirements of section 10004(c).
As to the final potential violation, this office finds that there has been a violation of section 10004(f). Counsel for the Council has represented that no minutes of the executive session were prepared because of the Council’s concern with potential litigation. While there may be a concern with potential or realized litigation, this does not excuse the Council from compliance with section 10004(f). Minutes, including those of executive sessions, “shall” be maintained. While the Council might pose some basis to prevent the public disclosure of those minutes, the actual preparation and maintenance of those minutes is mandatory.
In conclusion, the Attorney General finds that the FOIA was violated when the Council did not properly notice the hearing in that the agenda failed to include the items enumerated above–primarily the executive session. The council further failed to properly enter into that executive session in accordance with section 10004(c), and failed to prepare and maintain the minutes of that executive session.
The Attorney General directs the Council to take remedial action by re-noticing the public meeting with an agenda that complies with the provisions of the FOIA. If the Council fails to take such corrective action, the Attorney General may undertake enforcement action pursuant to 29 Del. C. section 10005(e). Please provide this office with copies of the public notice, agenda and meeting minutes (including executive session minutes) of the public meeting when it is scheduled and held by the Council.
Very truly yours,
Kevin R. Slattery
Deputy Attorney General
John K. Welch
Deputy Attorney General
Approved
Michael J. Rich
State Solicitor
Attachment
Xc. M. Jane Brady
Attorney General
Ms. Elizabeth Bacon
Opinion Administrator
1. For future reference, it is recommended that where a public body intends to rely upon 29 Del. C. section 10004(e)(2), that its notice and agenda contain a reference to this intention.

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