Civil Division – New Castle County
June 18, 1996
Del. Op. Atty. Gen. 96-IB22 (Del.A.G.), 1996 WL 345844
(determining that AG lacked jurisdiction to determine whether town council violated town charter, and finding that town council did not violate the open meeting requirements of FOIA where special meeting was properly noticed and memorialized in minutes in accordance with FOIA)
Ms. Elise Altergott
220 Church Street
P.O. Box 1301
Millsboro, DE 1966-5301
Re: Freedom of Information Act Complaint
against Town Council of Millsboro
Dear Ms. Altergott:
Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred.
On May 20, 1996, we received your complaint, as set forth in your letter of May 15, 1996. By letter dated May 24, 1996, we asked the Town Council of Millsboro to respond to your allegations of FOIA violations. By letter dated June 3, 1996, the attorney for the Town responded, providing us with documents, including minutes of regular town council meetings, minutes of special meetings of the Economic Development Committee and the Main Street Enhancement Project, and the agenda posted to give the public notice of those meetings.
Your complaint states you do not believe that “the Town Council of Millsboro is meeting the Freedom of Information Act, following Delaware law relating to Town Charters, nor meeting the guidelines of the Charter of the Town of Millsboro.” With regard to any alleged charter violations, inadequacies in the town charter, or alleged malfeasance of town officials (such as conflicts of interest), the Attorney General does not have jurisdiction over these matters under FOIA, and therefore we do not address them in this written determination.
The two FOIA violations you do allege are: (1) the special meetings of the Millsboro Economic Development Committee “were not open to the Citizens or public”; and (2) the only notice given of a special meeting regarding the Main Street Enhancement Program were invitations “mailed to 37 businesses on Main Street only.” We address these two issues in our opinion below.
The Pertinent Statutes
29 Del. C. Section 10002(a):
“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division 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.
29 Del. C. Section 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.
. . .
(e)(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.
(e)(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 the meetings of the public body are regularly held, and making a reasonable number of such notices available.
Opinion
The documents produced by the attorney for the Town in response to your complaint show that the Town Council appointed an Economic Development Committee at the regular council meeting on February 6, 1995 to work with the local chamber of commerce on the future economic development of Millsboro. At the June 5, 1995 regular council meeting, the Town Council directed that committee to set a date and time for meeting.
Over the course of July 1995-June 1996, that committee met once a month (with the exception of January 1996). The documents produced by the attorney for the Town show that each meeting was properly and timely noticed to the public in accordance with FOIA, and that the committee held public meetings following the publication of each month’s agenda. Further, minutes of those meetings were prepared. The documents, therefore, support the conclusion that the requirements of FOIA were met with regard to those meetings, and that the public had the opportunity to observe the performance of public officials and to monitor their decisions.
The documents submitted by the Town’s attorney in response to your complaint show that at the July 3, 1995 regular council meeting there was discussion of a plan to beautify Main Street with plantings. At the regular council meeting on October 2, 1995, the Council decided to “arrange a meeting if possible with the downtown property owners on the same evening as the audit workshop, October 16, 1995” to discuss the so-called Main Street Enhancement Program. The documents show that special meeting was properly and timely noticed to the public in accordance with FOIA. In addition to posting the agenda for the special meeting, the Town also extended invitations by mail and telephone to the owners and operators of businesses on Main Street to ensure their participation and input. Minutes were prepared of the special meeting held on October 16, 1996. Again, the documents support the conclusion that the requirements of FOIA were met with regard to this special meeting, and that the public had the opportunity to observe the performance of public officials and to monitor their decisions.
Based on our review of your complaint, and the response of the attorney for the Town and the documents produced, we conclude that there has not been a violation of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
____________________
Michael J. Rich
State Solicitor
cc: Tempe Brownwell Steen, Esquire
Elizabeth A. Bacon, Opinion Administrator

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