July 31, 2003
Civil Division-Kent County (739-7641)
Ms. Joan D. Mason Ms. Carole F. Coleman
203 Main Street 017 High Street
Odessa, DE 19730-0207 Odessa, DE 19730
Mr. John S. Tullich
211 High Street
P.O. Box 473
Odessa, DE 19730
Re: Freedom of Information Act Complaints Against Town of Odessa
Dear Citizens:
Our Office received your Freedom of Information Act (“FOIA”) complaints between June 11-17, 2003 alleging that the Town of Odessa (“the Town”) violated FOIA by discussing matters of public business at a meeting on June 2, 2003 without the required notice to the public. Your complaints also allege that the Town violated its charter in removing a councilman for missing three consecutive meetings. That issue is outside our jurisdiction under FOIA.
By letter dated June 27, 2003, we asked the Town to respond to your complaints. Because of the July 4th holidays, we granted the Town an extension of time and received their response on July 10, 2003. The Town does not dispute that the agenda posted for the June 2, 2003 meeting did not state that the Council would discuss a councilman’s forfeiture of office. The Town, however, claims that FOIA permitted the Town to add that item to the agenda when it came up during the new business segment of the meeting.
Relevant Statutes
FOIA requires that “[e]very meeting of all public bodies shall be open to the public excpet those closed” for executive session as authorized by statute. 29 Del. C. § 10004(a).
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, . . . .” Id. § 10004(e)(2). FOIA defines “agenda” to mean “a general statement of the major issues 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 . . . .” Id. § 10002(f).
FOIA provides that an “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.” Id. § 10004(e)(2).
Legal Authority
FOIA permits changes to the agenda that arise during a meeting, but our Office has determined that such changes can be made only under special circumstances. “[I]f a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation.” Att’y Gen. Op. 97-IB20 (Oct. 20, 1997).
We believe that a narrow reading of this exception to the notice requirements of FOIA is necessary lest the exception swallow the rule. See Att’y Gen. Op. 99-IB11 (June 25, 1999) (“The issue of a budget amendment arose well prior to the meeting on March 22, 1999, and could have been included in the agenda posted for that meeting within the seven days required by law.”); Att’y Gen. Op. 00-IB07 (Apr. 28, 2000) (“The referendum issue did not arise unexpectedly and no satisfactory explanation has been provided to suggest why the agenda notice did not include the referendum issue as required by law.”); Att’y Gen. Op. 01-IB13 (Aug. 9, 2001) (the Dover Air Force Base’s concerns about a municipal waste transfer facility were well known prior to the meeting of the Dover Safety Advisory Committee).
There is no apparent reason why the Town could not have included the office forfeiture issue in the agenda for the June 2, 2003 meeting if the Town had any reason to believe that the issue might come up. The last meeting Councilman Allen missed was in April 2003, two months before the Town Council’s meeting on June 2, 2003. The Town could have raised the forfeiture issue – and properly noticed it to the public – at any time during that period.
We will give the Town the benefit of the doubt that it did not know in advance that a citizen might raise the forfeiture issue during the portion of the June 2, 2003 meeting designated on the agenda for “New Business.” We do not believe, however, that a public body can use the general rubric of “new business” or “old business” to satisfy the requirements for an agenda under FOIA: “to draw the public’s attention to the fact that a specific important subject will be treated.” Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610, at p. 5 (Aug. 29, 1986) (Allen, C.). If the legislature intended that “new business” or “old business” without further detail would constitute sufficient notice to the public, then it would not have been necessary for the legislature to specifically authorize a public body to add items to the agenda “which arise at the time of the public body’s meeting.” 29 Del. C. § 10004(e)(2). Either category – “old business” or “new business” – would suffice to cover any business of the public body.
“We do not find the item ‘New Business'” on the agenda for the Town’s June 2, 2003 meeting to “provide sufficient notice to the people of a resolution” calling for the forfeiture of a councilman’s office. Rice v. Board of Trustees of Adams County, Ill. App., 762 N.E.2d 1205, 1207 (2002). FOIA requires sufficient specificity in the agenda’s description of the items to be discussed to ensure fair notice to the public. Fair notice cannot be imputed from vaguely worded descriptions of agenda items such as “old business” and “new business.” Such vaguely worded descriptions invite discussions and actions on any topic without the limitations imposed by
FOIA. (1)
We recognize that a public body cannot entirely control what matters citizens may try to raise during a public commentary period at a meeting. But when a citizen raises a substantial matter not specifically noticed for public discussion, there must be a compelling reason why the issue cannot wait for discussion until a later meeting to allow for proper notice under FOIA.
The forfeiture of office issue was not a natural extension of discussion of a matter of public business listed in the agenda for the June 2, 2003 meeting. The Town has not advanced any compelling reason why it could not have deferred the issue until a future meeting of the Town Council to give the public fair notice in advance as required by FOIA.(2)
We determine that the Town violated FOIA by discussing a substantial matter of public business at the June 2, 2003 meeting without adequate notice to the public. Because of the nature and seriousness of the violation, prompt and effective remediation is necessary. The Council did not just discuss whether Councilman Allen forfeited his office under the Town charter, but voted to appoint another person to take his place.
In Ianni, supra, Chancellor Allen found that the Department of Elections of New Castle County violated FOIA by failing to give sufficient notice to the public that it would discuss a proposal to consolidate election districts for the purpose of the primary election. The Chancellor rejected the argument that the FOIA violation was merely technical. The action taken by the Department of Elections closing polling stations affected “substantial public rights . . .When the decision involves the electoral process, these rights of the public take on an enhanced importance.” 1986 WL 9610, at pp.7, 6.
Like Ianni, this case affects the fundamental right to vote and the important civil liberty of citizens to be governed by the representatives they elect. We do not see the Town’s FOIA violation as technical. The action taken by the Town Council in declaring a councilman’s office forfeited and voting to replace him with another person affected substantial public rights. See Patterson v. DeCarbo, supra, (invalidating the housing authority’s action removing a commissioner from office for failure to comply with the public notice requirements of the state open meeting law).
Conclusion
For the foregoing reasons, we determine that the Town violated the public notice requirements of FOIA by discussing a substantial matter of public business at the June 2, 2003 meeting without adequate notice to the public. Because the Town’s FOIA violation affected substantial public rights, we consider the action taken by the Town to be invalid. To remediate, we direct the Town to notice a meeting in strict compliance with FOIA to be held within thirty (30) days of the date of this letter to discuss the forfeiture issue in public before taking any official action. The Town should publish notice of that meeting and the agenda at least seven days in advance. The Town is also directed to inform our Office in writing within five days after remediation is completed.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Clifford B. Hearn, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator
I:\Phil\AG-OPN\2003\03-IB17
1. We note that the Town listed specific items for discussion under both “Old Business” and “New Business” in the agenda for the June 2, 2003 meeting. Under “New Business” is listed Memorial Park Development Program; First Reading of Subdivision Ordinance; Review Date for Next Regular Meeting of Mayor and Council Traffic on 299 as the Result of the Opening of SR I; and Resolutions for Treasurer and Clerk Salary 2003-2004.
2. In the event that FOIA permits a public body to add items to the agenda, the “proper procedure is for [the public body] by motion to vote to amend the agenda. This was not done.” Patterson v. DeCarbo, Pa. Ct. Common Pleas, 2000 WL 1865006, at p.3 (Mar. 24, 2000).

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