Delaware Department of Justice
Attorney General
Kathy Jennings

03-IB16 08/08/03 FOIA Opinion Letter to Mr. McCarthy and Mr. Maher re: FOIA Complaints Against Town of Slaughter Beach

Attorney General Opinion No. 03-IB16
August 8, 2003
Mr. Daniel McCarthy
555 Bay Avenue
Milford, DE 19963
Mr. James Maher
475 Bay Avenue
Milford, DE 19963
Re: Freedom of Information Act Complaints Against Town of Slaughter Beach
Our Office received your Freedom of Information Act (“FOIA“) complaints on July 1 and July 8, 2003 alleging that the Town of Slaughter Beach (“the Town“) violated FOIA by discussing matters of public business at a meeting on July 1, 2003 without the required advance notice to the public.
By letter dated July 8, 2003, we asked the Town to respond to your complaints. We received the Town’s response on July 11, 2003. The Town contends that it satisfied the notice requirements of FOIA by posting the notice and agenda for a special meeting on July 1, 2003 three days in advance (on June 28, 2003).
Relevant Statutes
FOIA requires that “[e]very 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).
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 requires a public body to give notice of any special meeting “as soon as reasonably possible, but in any event no later than 24 hours before such meeting.” Id. § 10004(e)(2). A special meeting is defined “as one to be held less than 7 days after the scheduling decision is made.” Id. The notice of a special meeting “shall include an explanation as to why the [normal 7 days notice] could not be given.” Id.
Legal Authority
On June 28, 2003, the Town posted notice of a special meeting of the Town Council to be held at 6:30 p.m. on Tuesday, July 1, 2003 at the Slaughter Beach Fire Hall. The notice stated that the purpose of the meeting was to withdraw “the contract for improvements to Beach Plum Drive from Swain Excavating, Inc.” and to award “a new contract” to “Mr. Buddy Webb. The reason for holding the special meeting is to minimize any further delays in the work.”
The minutes of the special meeting on July 1, 2003 (1) show that the Town Council discussed the road contract for nearly an hour with substantial input from members of the public (27 guests were present).1 At the end, the Council voted 3-2 to award the Beach Plum Drive road improvement contract to Buddy Webb because Swain Excavation had not started the project even though the Town has initially awarded the contract to Swain the previous November.
To notice a special meeting, FOIA “requires only a reason, not a specific detailed factual basis, why the seven-day requirement could not be met.” Att’y Gen. Op. 94-IO37 (July 26, 1994). See Att’y Gen. Op. 96-IB15 (May 10, 1996) (finding that the notice lacked “any explanation” why the seven-day requirement was not met). The notice of the July 1, 2003 special meeting which the Town posted on June 28, 2003 satisfied this requirement by stating that the Council would discuss rescinding the road improvement contract with Swain Excavating and awarding it to Webb.
Our Office, however, has interpreted the shorter notice period allowed by FOIA for a special meeting to require some showing of an “exigent circumstance or compelling need for the [public body] to hold a ‘special’ meeting to discuss a [matter] of public business.” Att’y Gen. Op. 00-IB07 (Apr. 28, 2000). For example, in Att’y Gen. Op. 01-IB02 (Jan. 30, 2001) we found that the town properly called a special meeting to consult with its solicitor because the time to appeal a court decision would have expired by the time of the town’s next regularly scheduled meeting.
The minutes of the July 1, 2003 special meeting show that the Town awarded the road improvement contract to Swain back in November of 2002, but that Swain had not even started the work more than seven months later. At the special meeting on July 1, 2003, there were concerns expressed about public safety and legal liability if the repairs were not made in a timely fashion, and the new contractor (Webb) was committed to finishing the project by August 1, 2003. Mayor Clendaniel informs us that Webb has started the project and appears on course to finish the project on time.
The minutes of the July 1, 2003 special meeting indicate that the next regular meeting of the Town Council was scheduled for July 8, 2003. It might appear that the Council could have waited one week to take up the road repair issue to comply with the normal seven days notice under FOIA. In this instance, however, since there is no pattern of the Town’s using the special meeting exception to address matters of public business, we will accept the Town’s representations about the urgency of the road improvement matter.
For the foregoing reasons, we determine that the Town did not violate FOIA by publishing the notice for a special meeting on July 1, 2003 three days in advance since the statute permits notice for special meetings to be less than seven days (but not less than 24 hours) when there is good reason.
Very truly yours,
/s/ W. Michael Tupman
W. Michael Tupman
Deputy Attorney General
/s/ Malcolm S. Cobin
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Mayor Robert Clendaniel
Mr. Phillip G. Johnson, Opinion Coordinator
1 We recognize that the minutes provided by the Town are not final and will not be approved until the next regularly scheduled meeting of the Town Council, but appreciate the Town providing us with the draft minutes to assist our inquiry.

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