October 20, 1997
New Castle County – Civil Division
Mr. Gregory S. Layton
Milford Chronicle
P.O. Box 297
Milford, DE 19963
RE: Freedom of Information Act Complaint
Against Milford City Council
Dear Mr. Layton:
In your letter dated September 5, 1997 (received by this Office
on September 8) you alleged that the Milford City Council (the
“Council”) had violated the Delaware Freedom of Information Act,
29 Del. C. Sections 10001-10005 (“FOIA”), in connection with two
meetings on August 11 and 21, 1997. Specifically, you allege that
the agenda posted for those meetings did not indicate that the
Council might go into executive session and the reason(s)
therefor, and that the Council did not vote in public to go into
executive session. Your letter also suggests that the Council may
have gone into executive session for a purpose other than
authorized by law.
By letter dated September 9, 1997, we asked the Council to
respond to your complaint. By letter dated September 26, 1997
(received by this Office on September 29), the Council responded
through its attorney, admitting “that the executive sessions were
not held in full compliance with the Act.” He further stated: “No
votes were taken at the executive sessions. The City regrets any
inconvenience and concern caused to the public and the press and
intends to proceed in full compliance with [FOIA] at all future
meetings.”
STATUTORY PROVISIONS
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. Section 10004(e)(2). The agenda must
include not only “a general statement of the major issues to be
discussed at a public meeting,” but also “a statement of intent
to hold an executive session and the specific ground or grounds
therefor under subsection (b) of Section 10004 of this title.” 29
Del. C. Section 10002(f). Section 10004(b) sets forth nine
authorized grounds for a public body to go into executive
session.
In order to go into executive session, there must be an
“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.”
29 Del. C. Section 10004(c).
OPINION
Under FOIA, “to convene in executive session, the public body
must satisfy several requirements”: (1) publicly announce the
purpose of the closed meetings in advance; (2) approve holding
such a session by a majority vote; (3) limit the agenda of the
closed session to public business that falls within one of the
purposes allowed for such meetings; and (4) prepare minutes of
any closed session. Levy v. Board of Education of Cape Henlopen
School District, Del. Ch., 1990 WL 154147, at p.3 (Oct. 1, 1990)
(Chandler, V.C.).
The Council does not dispute that it failed to comply with any of
these requirements with respect to the meetings held on August 11
and 21, 1997. In particular, the agenda stated only that there
would be a “Special Meeting – Perdue/David Bates,” but did not
inform the public that the Council intended to go into executive
session. The Council did not vote in public to go into executive
session, nor were minutes of the executive session maintained.
Because of these violations of FOIA, any action taken by the
Council at those meetings is voidable. See 29 Del. C. Section
10005(a).
To remedy these violations of FOIA, we direct the Council to
re-notice the matters that were the subject of discussion at
those two meetings for another meeting open to the public. This
should be done in strict compliance with the requirements of
FOIA, both with respect to the specifics of public notice, and
the mechanics of going into executive session. A majority of the
Council must vote in public to go into executive session.
Additionally, the purpose for which the Council goes into
executive session must be one permitted under FOIA. After the
Council votes to go into executive session, the public may be
excused, but the public may return after the executive session is
over to observe any further proceedings of the Council which are
not within a statutory exception for executive session. The
Council is reminded it must also prepare minutes of the executive
session so that, if necessary, it can be ascertained at a later
date whether the Council stayed within the confines of the
subject(s) authorized by FOIA for executive session.
The Council is cautioned that it must strictly comply with the
requirements of the open meeting laws in the future. A lack of
knowledge of the requirements of the law will not suffice to
defend against a complaint of failure to comply with FOIA. If the
Council is unsure about any particular legal requirement, it “can
have its attorney on hand to advise it.” Levy, 1990 WL 154147, at
p. 9.
Conclusion
For the foregoing reasons, we determine that the Council violated
the open requirements of FOIA in the notice and conduct of the
meetings on August 11 and 21, 1997. The Council is directed to
hold those meetings anew in full compliance with FOIA, and to
strictly comply with the requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED:
___________________
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Keith R. Brady, Chief Deputy Attorney General
James A. Fuqua, Jr., Esquire
Chrystyna Lafferty, Opinion Coordinator

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