February 5, 2003 Civil Division-Kent County
Ms. Vicki Carmean
38 West Essex Street
Fenwick Island, DE 19944
Re: Freedom of Information Act Complaint Against Town of Fenwick Island
Dear Ms. Carmean:
Our Office received your Freedom of Information Act (“FOIA”) complaint on November 22, 2002. You allege that the Town of Fenwick Island (“the Town”) violated FOIA by: (1) failing to prepare timely minutes of meetings of the Town Council; (2) meeting without notice to the public sometime in November 2002 to hire Glenn Hudson for six months as officer-in-charge of the Town police department; and (3) meeting on November 22, 2002 without giving seven days notice to the public; and (4) meeting on November 22, 2002 in executive session to discuss subjects not authorized by FOIA.
By letter dated November 22 2002, we asked the Town to respond to your complaint. Because of the Thanksgiving holidays and previous commitments by the Town Solicitor, we granted an extension of time until December 13, 2002 for the Town’s response. On January 27, 2003, we requested and received additional information from the Town.
According to the Town, it tries to prepare minutes in time for approval at the next meeting of the Council, but there were delays in preparing some of the minutes last year because of a large number of special meetings and executive sessions. In addition, the Town Administrator retired in June 2002, and the new Administrator faced a backlog of paperwork associated with personnel issues and a three-year audit of the Town’s finances.
The Town denies that there was a “meeting following November 1, 2002 regarding the November 15 employment offer to Glenn Hudson.” According to the Town, “Councilperson Henifin, in his capacity as Commissioner of Public Safety, had been authorized to hire Mr. Hudson as a temporary full-time officer with the intention of appointing him officer in charge. Mr. Henifin determined the salary, length of assignments, benefits and duties in his capacity as Commissioner of Public Safety.”
The Town explains that it posted notice of the November 22, 2002 special meeting two days in advance to discuss the federal lawsuit filed by Chief Dickerson against the Town on November 20, 2002. The Town also had received a letter from our office on November 19, 2002 regarding the seating capacity for Chief Dickerson’s administrative hearing on December 4, 2002, and needed to address that issue right away.
FOIA provides that every “meeting of all public bodies shall be open to the public except those closed” for executive session as authorized by statute.” 29 Del. C. § 10004(a). FOIA authorizes a public body to go into executive session to discuss “pending or potential litigation, but only where an open meeting would have an adverse effect on the . . . litigation position of the public body.” 29 Del. C. § 10004(b)(4).
As a general rule, FOIA requires public bodies to give notice of their meetings “at least 7 days in advance thereof.” Id. § 10004(e)(2). A public body can give notice of a special meeting at least “24 hours before such meeting. . . . The public notice of a special meeting . . . shall include an explanation as to why the [normal seven days notice] could not be given.” Id. § 10004(e)(3).
FOIA requires public bodies to “maintain minutes of all meetings, including executive sessions, . . . 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 . . . of each vote taken and action agreed upon.” 29 Del. C. § 10004(f).
A. Timely Preparation of Minutes
We have reviewed the agendas and minutes for all meetings of the Town Council in 2002. Those records show that the Town did not prepare and approve minutes of eight executive sessions (February 8, March 29, April 8, May 10, June 2, June 28, August 24, and September 3) until September 26, 2002. The Town did not prepare and approve minutes of seven regular or special meetings (February 8, June 2, July 26, August 16, August 24, September 3, and September 13) until September 27, 2002. The Town did not prepare and approve minutes of three regular or special meetings (September 27, October 18 (zoning) and October 18 (licensing and taxation)) until November 15, 2002. The Town did not prepare and approve minutes of four special meetings (September 26, September 27, October 18, and November 1) until December 2, 2002.
At a special meeting on December 5, 2002, the Town Council approved the minutes of the special meetings on November 6 and November 22, 2002, bringing all of the Council’s minutes for the year 2002 up to date.
“Public bodies are required by law to prepare minutes of their meetings in a timely fashion, consistent with the purposes of FOIA.” Att’y Gen. Op. 98-IB01 (Jan. 21, 1998). “Any reasonable delay encountered,” however, “would not give rise to a FOIA violation.” Id. (the citizen requested a verbatim transcript of a city council meeting, which took longer to prepare than the minutes).
FOIA does not set a time limit for a public body to prepare minutes of its meetings. We believe that a reasonable time is by the time of the public body’s next regularly scheduled meeting. We can understand why, because of personnel absences, the minutes of a particular meeting might be delayed. But the Town has not adequately explained why it did not prepare and approve minutes of fifteen meetings in 2002 for periods ranging from two to seven months. The Town may have hired a new administrator in June 2002, but a third of the overdue minutes were for meetings prior to that date.
Timely preparation of the minutes of the meetings of a public body is not a technical detail. The minutes serve the important purpose of letting “the general public know when and where to find an official accounting of the business that transpired.” Claxton Enterprise v. Evans County Board of Commissioners, Ga. App., 549 S.E.2d 830, 836 (2001) (board waited until August 3, 1999 to prepare and approve the minutes of its meeting on July 1, 1999, “even though a regularly scheduled meeting was held on July 6″).
B. Hudson Contract
In an executive session on November 1, 2002, the Council authorized Councilman Henifin to hire Glenn Hudson as the officer-in-charge of the Town police department until December 5, 2002.” (1)
The minutes of the regular meeting of the Town Council on November 15, 2002 state that the Town had “today hired [Glenn Hudson] as a temporary full time officer for a period of 180 days and designated his status as officer in charge until December 5.”
In your complaint, you suggest that sometime between the November 1 and November 15 meetings of the Council, members of the Council met without your knowledge to agree to hire Hudson for six months, not just for five weeks. The only meeting of the Council noticed to the public between November 1 and November 15, 2002 was a special meeting on November 6, 2002. In both the public and executive session portions of that meeting, the Council did not discuss Hudson’s contract, according to the minutes.
Additionally, there is no evidence in the record that the Council met and discussed this matter at some other time without notice to the public. Even if Councilman Henifin exceeded the Council’s authority to negotiate a five-week contract with Hudson, the full Council ratified a six-month contract at a public meeting on November 15, 2002. We find no FOIA violation.
C. November 22, 2002 Meeting – Public Notice
The Town posted the agenda for the November 22, 2002 special meeting of the Council on November 20, 2002. The agenda explained the reason for the short notice: “This meeting is being held with less than 7 days notice because of need to meet potential litigation issues; only time a quorum could be gathered in a timely manner.”
FOIA only “requires a reason, not a specific detailed factual basis, why the seven-day requirement could not be met.” Att’y Gen. Op. 96-IB15 (May 10, 1996). In Att’y Gen. Op. 01-IB02 (Jan. 30, 2001), we determined that the Odessa Town Council properly called a special meeting to consult with the town solicitor in time to file an appeal to the Supreme Court. We conclude that the Town was justified in calling a special meeting with two days’ notice to the public in order to discuss Chief Dickerson’s civil rights lawsuit (filed on November 20, 2002) and how to respond. The Town also needed to address the issue of the venue for Chief Dickerson’s administrative hearing, which our Office had called into question.
C. November 22, 2002 Meeting – Executive Session
The agenda for the Town Council meeting noticed for November 22, 2002 listed “Executive Session to Discuss Personnel and Potential Litigation.” We have reviewed in camera the minutes of that executive session, and are satisfied that the discussion involved matters authorized by FOIA. See 29 Del. C. § 10004(b)(4).
For the foregoing reasons, we determine that the Town did not violate FOIA in the following respects: (1) The Town Council did not meet without notice to the public to discuss the term of Glenn Hudson’s contract in November 2002; (2) the Town Council provided adequate public notice of a special meeting held on November 22, 2002; and (3) the Town Council met in executive session on November 22, 2002 for a purpose authorized by statute.
We determine that the Town violated FOIA by not preparing timely minutes of meetings held in 2002. We do not believe that any remediation is necessary at this point because the Town appears to have resolved the problem by the end of the year. According to the Town Solicitor, changes in the Town’s administrative practices will make sure that this problem does not recur in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Tempe Brownell Steen, Esquire
Phillip G. Johnson, Opinion Coordinator
1. By making this disclosure, we do not undermine the confidentiality of the minutes of executive session because they are exempt from disclosure under FOIA only “so long as public disclosure would defeat the lawful purpose for executive session, but not longer.” 29 Del. C. § 10004(f). Since the Town has already hired Hudson, disclosure would no longer defeat the lawful purpose of the executive session on November 1, 2002 (to discuss a job applicant’s qualifications).