Del. Op. Atty. Gen. 97-IB17 (Del.A.G.), 1997 WL 606477
Office of the Attorney General
State of Delaware
Opinion No. 97-IB17
August 28, 1997
RE: Freedom of Information Act Complaint Against City of New Castle
*1 Jeffrey M. Weiner, Esquire
1332 King Street
Wilmington, DE 19801
Dear Mr. Weiner:
By letter dated July 21, 1997, you alleged, on behalf of Wilmington Fraternal Order of Police Lodge # 1, that the Council of the City of New Castle (“the City”) had violated the open meeting requirements of the Delaware Freedom of Information Act, 29 Del. C. Sections 10001–10005 (“FOIA”), by holding meetings without giving notice to the public.
By letter dated July 31, 1997, we asked the City to respond to your complaint. By letter dated August 6, 1997 (received by this Office on August 11), the City responded, enclosing copies of the notices of seven meetings held in July and August, 1997. The City denies that these were meetings of the City Council, but rather were meetings of the City’s Public Safety Review Committee, only one of whose three members is also a member of the Council.
By letter dated August 14, 1997, you clarified your allegations of FOIA violations by the City. You allege that the City failed to give notice of a meeting of the Public Safety Review Committee on July 17, 1997 (although you do not contend that the City failed to give notice of other meetings that same week) to interview police officers. You also allege that “the Notices posted by City Council did not set forth any agenda nor specific issues to be addressed.”
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 arising at executive sessions of 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).
FOIA defines a “public body” to include, among other things, any “committee” established by “any body established by the General Assembly of the State” or “appointed by any body.”
The City does not dispute that the Public Safety Review Committee is a “public body” for purposes of the open meeting requirements of FOIA.
On July 9, 1997, the City posted notices stating that the “New Castle City Public Safety Review Committee will meet at the following times, with members of the City Public Safety Department and will be followed by an Executive Session pursuant to Section 10004(b)(9) unless the respective Officer requests that (his/her) interview be open to the public as provided in Section 1004)(b)(9).” The notice listed various times for these meetings on July 14, 15, 16, and 18, 1997.
*2 With respect to the meetings on July 14 and 15, the City did not give notice at least seven days in advance as required by FOIA. Although FOIA permits notice of a special or rescheduled meeting to be posted 24 hours prior to the meeting, see 29 Del. C. Section 10004(e)(3), there is nothing in the City’s response to the complaint indicating that the meetings scheduled for the week of July 14 were a special or rescheduled meeting, that is, “one to be held less than 7 days after the scheduling decision is made.” Id.
Furthermore, the notices for all the meetings scheduled for the week of July 14 do not contain the required agenda. Although FOIA allows a public body to add or delete items from the posted agenda if they arise at the public meeting, the Public Safety Review Committee knew in advance the matters that would be discussed in its meetings scheduled for the week of July 14.
In Ianni v. Department of Elections of New Castle County, Del. Ch., 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.” 1986 WL 9610, at p. 5.
The City suggests that the agenda for the meetings noticed for the week of July 14, 1997 is implicit in the notice since Public Safety Review Committee oversees police matters and the notice stated that the Committee would go into executive session pursuant to Section 10004(b)(9) of FOIA (the exception to discuss personnel matters). This Office, however, has previously determined that merely giving notice that a specific committee of a public body will meet does not satisfy the agenda requirement of FOIA because that does not sufficiently alert the public as to the major issues expected to be discussed at a public meeting. See Att’y Gen. Op. 97-IB13 (June 2, 1997).
In your letter dated August 14, 1997, you also allege that the meeting noticed for July 16, 1997 was in fact held on July 17, so that the City failed to give any notice to the public of the meeting on July 17. From your letter, it appears that there was a last-minute scheduling conflict with one of the police interviews, which was re-scheduled for the convenience of the parties. Although a technical violation of FOIA, we do not find that it requires any remediation. Police interviews were ongoing all week, and any member of the public who was attending could have easily ascertained the schedule change. The affected police officers obviously were aware of the change.
*3 We also find that the failure to post notice seven days in advance of the meetings on July 14 and July 15 was a technical violation of FOIA that does not warrant the remedy of re-noticing the meetings held on those dates. While we do not condone any deviation from the letter of the law, there is no evidence that the City acted in bad faith, or that any member of the public who wished to attend the meetings of those dates was deprived of the opportunity because he or she did not have timely notice.
The lack of any agenda in the notices is more troubling. We find that the City violated the notice requirements of FOIA by not including a general statement of the major issues to be discussed at the meetings the week of July 14 sufficient to alert the public as to matters of public concern. We do not believe, however, that remediation is necessary, especially since the public would not have been able to observe most of the meetings held the week on July 14 while the Public Safety Review Committee was in executive session. Moreover, there is no evidence to suggest that the City Council took any action based on the interviews of police officers the week of July 14. To require the Public Safety Review Committee to re-notice its meetings and interview again the same police officers would not serve to further the purposes of FOIA.
We caution the City, however, that in the future it must comply with all requirements of the open meeting law. Specifically, the City must give notice at least seven days in advance of meetings of the City Council or any of its committees, unless FOIA authorizes a shorter time. In addition, the City must include in all notices of public meetings an agenda that will include a general statement of the major issues expected to be discussed at the meeting.
For the foregoing reasons, we determine that the City violated the open meeting requirements of FOIA by: (1) failing to give the public notice at least seven days in advance of the July 14 and July 15, 1997 meetings of the Public Safety Review Committee; and (2) failing to include an agenda in the notices of the meetings for July 14, 15, 16, and 18, 1997. The City is directed to strictly comply with the notice requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
Del. Op. Atty. Gen. 97-IB17 (Del.A.G.), 1997 WL 606477
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