February 12, 1997
Civil Division-New Castle County
Sent via facsimile and first class mail.
Roger A. Aiken, Esq.
P. O. Box 390
Newark, DE 19715-0390
Re: Freedom of Information Act Inquiry
On February 11, 1997 you addressed a letter to the Attorney
General requesting the Department of Justice’s position
concerning a proposed meeting between DelDot officials and “local
elected officials” for Thursday, February 13, 1997 at 7:30 p.m.
in the city council chambers to discuss DelDOT’s plans for the
intersection of Elkton Road, New London Road, Main Street and a
railroad crossing. Your concern was whether the attendance by
council at a meeting called by DelDOT would constitute a FOIA
violation in light of our ruling of January 2, 1996. In your
letter you also stated that we never responded to your letter of
July 29, 1996 requesting a modification of our January 2nd
opinion. As a result of our phone discussions, we determined that
my letter of October 17, 1996, which was mailed to your address
at the city of Newark, was apparently not received. A copy of
that letter enclosed.
Under 29 Del. C. § 10005(e), we are considering your request as a
petition to determine whether a FOIA violation has occurred or is
about to occur. As you may also know, under that section,
subsection (e) does not apply to potential or alleged violations
of state agencies which are represented by our office.
Based on information which was published in newspapers of record
and considering case law which suggests that meetings of the type
discussed in your letter of February 11th would subject the city
to a potential complaint of FOIA violation, we believe that the
meeting scheduled for February 13, 1997 can go forward as planned
if the city will issue a notice at least 24 hours in advance of
the meeting pursuant to Section 10004(e)(3). Under that
subsection, a public notice of a special meeting shall include an
explanation as to why the required seven day notice was not given
and it is our opinion that it is a sufficient explanation to
state that an earlier notice was not possible because legal
opinions had not been obtained from the City Solicitor and the
Attorney General prior to the posting of the notice. If such a
notice is posted by the close of business today, February 12,
1997, it is our opinion that a FOIA violation will not occur and
that the meeting may go forward as scheduled. It is also our
understanding that DelDOT will also issue a similar notice since
it is the agency which set up the meeting. It would still be
appropriate for the city to publish a notice of a meeting of its
council for the same time setting forth the receipt of
information from DelDOT as a purpose for the meeting.
Please feel free to call me if you have any further questions
concerning this matter.
Very truly yours,
Michael J. Rich
cc: Hon. M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
Michael W. Tupman, Deputy Attorney General
Frederick H. Schranck, Deputy Attorney General