February 3, 2005
Civil Division – New Castle County
By U.S. Mail
Councilman Patrick J. Cahill
555 Kates Way
Smyrna, DE 19977
Re: Freedom of Information Act Complaint
Against the Town of Smryna
 
Dear Council Member Cahill:
On October 27, 2004 this office received your letter alleging that the Town of Smyrna (“the
Town”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C.
Chapter 100 (“FOIA”). You allege specifically that: (1) on September 28, 2004 a quorum of the
Town Council met without notice to the public to discuss your alleged “disruptive behavior” and
pursuit of a “personal agenda” during Council meetings; (2) the September 28, 2004 meeting
occurred without a posted agenda and no minutes were kept; (3) public business was conducted at
this meeting resulting in a letter produced on Town stationary and addressed to you concerning your alleged misconduct; and, (4) on October 6, 2004, the Town Manager and the Director of Planning
and Inspections began to conduct a public hearing on a proposed boat and RV storage ordinance
without either appropriate notice to the public or an agenda.
By letter dated October 29, 2004, this office requested the Town’s response, which was
received on November 18, 2004.1 According to the Town, the event held on October 6, 2004 was
not a “meeting” of a “public body” as defined by FOIA. The event was a public workshop conducted
by employees and staff of the Town. The workshop was intended only to seek input from the public
on the subject of boat and RV storage in preparation for drafting a proposed ordinance. No
ordinance had been drafted at this point. The Town contends that FOIA was not applicable to this
event.
Regarding the letter dated September 28, 2004, the Town contends that there was no
“meeting” held to formulate the letter, and the number of people involved does not constitute a
quorum of the Town Council. The Town states that the letter was drafted by one individual and
expressed her personal concerns with a fellow Council member. Her subsequent communications
with other members of the Town Council were intended only to determine if she was alone in her
opinion. The Town contends that the letter was “not significantly different” from having three
individual letters from the Council members. The Town’s final contention is that there was no
deliberate or intentional effort to circumvent the open meeting provision of FOIA.
Following this office’s review of the complaint and response, additional information was
requested by letter to the Town Solicitor dated December 2, 2004. The Town responded on
December 14, 2004.
1 The Town’s response included a letter from the Town Solicitor with attachments consisting of affidavits from D.
Sue Hensley, William W. Hill, Memphis Evans and Stephen J. Lee.
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). FOIA also
requires all public bodies to “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….” 29 Del. C. § 10004(e)(2).
FOIA defines a “public body” in very broad terms to include municipal government entities,
including their committees and subcommittees, which (among other defining factors), are “impliedly
or specifically charged by any other public official, body or agency to advise or make reports,
investigation or recommendations.” 29 Del.C. § 10002(c).
FOIA defines a “meeting” as “the formal or informal gathering of a quorum of the members
of any public body for the purpose of discussing or taking action on public business.” 29 Del. C. §
10002(b).
Legal Analysis
A. October 6, 2004 Workshop
We have previously determined that the open meeting requirements of FOIA apply “not only
to gatherings where a public body takes formal action, but also to a ‘workshop.’” Att’y Gen. Op. 04-
IB18 (Oct. 18, 2004) (quoting Att’y Gen. Op. 02-IB07 (Mar. 22, 2002)). “The open meeting law
applies to ‘fact gathering, deliberations, and discussions, all of which surely influence the public
entity’s final decision.” Id.
You acknowledge, however, that the workshop did not go forward because of your FOIA
compliance concerns. Since no “meeting” took place, there could not be a FOIA violation.
Moreover, the workshop was noticed and posted in accordance with FOIA for October 27, 2004.
Any alleged violation resulting from the October 6, 2004 workshop was cured as a result of the
subsequent notice and posting.
B. September 28, 2004 Letter
In her affidavit of November 12, 2004, Council Member Sue Hensley states that she drafted
the letter but did not send it immediately because she “was interested in seeing if [she] was the only
one concerned … with [Council Member] Cahill’s conduct.” She then telephoned, and subsequently
met with, Council Member Memphis Evans regarding the letter. In her affidavit she states that “[h]e
read the letter, said that he agreed with its content, and signed it.”2 Five days thereafter (on
September 20, 2004), Council Member Hensley spoke with Council Member William Hill
immediately following the regularly scheduled Town Council meeting. She showed him the letter,
and he “shared with [her] his own frustration with Mr. Cahill’s conduct….” He then signed the
letter.3 On September 23rd, Council Member Hensley approached Council Member Temple Carter
immediately following a Town Council meeting. She showed him the letter (now bearing signatures
from three Council Members), he read it, and “said that he agreed with its content, but stated that he did not want to sign the letter.” The following day, Council Member Hensley telephoned Council
Member Rick Burritt and faxed him a copy of the letter. While he also shared a lot of her concerns,
2 In a separate affidavit, Council Member Evans corroborates this recitation of the contact.
3 In a separate affidavit, Council Member Hill corroborates this recitation of the contact.
“he did not feel it was appropriate for any member of Council to tell any other member of Council
how to conduct himself, and he declined to sign the letter.”
In all, Council Member Hensley contacted four (4) other members of the Town Council and
solicited their responses to the content of the letter. Those members commented on the letter duringtheir contacts with Council Member Hensley, and following their comments, two of the four Councilmembers chose to be signatories to the letter along with her. In response to this FOIA complaint, the
Town acknowledges that by meeting with the Council members individually, Council Member
Hensley’s contacts could be viewed as an attempt to circumvent the open meeting provision of
FOIA. It posits that our office should view this conduct as Council Member Hensley’s expression of
her personal concerns and her efforts to “’test’ the validity of her own personal concerns against the
opinions of other Council members….”
Based upon the information gathered from this investigation, this office concludes that the
Smyrna Town Council violated the open meeting requirements of FOIA by holding a meeting to
discuss a matter of public business without notice to the public.
In Att’y Gen. Op. 04-IB17 (Oct. 18, 2004), this office determined that the county council
violated the open meeting requirement of FOIA when one councilman circulated a written proposal
to allocate county funds and then contacted three of the seven members of the council by telephone to solicit their views. We determined that, in combination, these facts amounted to a “meeting” of a quorum of the council because “there was an active exchange of information and opinions” during
the telephone calls and not just a “passive receipt of information”, and a “consensus” was reached.
In Att’y Gen. Op. 04-IB17, we noted that “the circulation of written materials among the
members of a public body prior to a public meeting does not violate FOIA so long as there is no
interactive discussion of the materials.” In this case, the record shows that there was an interactive
discussion of the letter drafted by Council Member Hensley with four of the other members of the
Council. A total of five Council members (a quorum) reviewed, discussed and decided whether or
not to sign a letter to be delivered to another member of the Council. These contacts were more than
the passive receipt of information. Council Member Hensley may have formulated the letter itself,
however, by contacting other members of the Town Council, she solicited their opinions, and in
deciding whether to become signatories to the letter, the other members took a position on a matter
of public business: your alleged misconduct. We determine that the sum of those communications
amounted to a meeting of a public body covered by FOIA.
C. Remediation
Based on the facts presented, we do not believe that any remediation is necessary. In contrast
to Att’y Gen. Op. 03-IB17 (July 31, 2003), the action taken by the five members of the Town Council in preparing the letter of September 28, 2004 did not result in the impairment of the substantial right
to vote by removing an elected official from office. The letter has been finalized, sent, and is now a
matter of public record. No purpose would be served at this point in requiring the Council to renotice a meeting to discuss the letter. No doubt the contents of that letter will be the subject of
spirited public debate in the future at meetings noticed to the public as required by FOIA.
Conclusion
For the foregoing reasons, this office determines that the Town did not violate the open
meeting requirements of FOIA by holding a “workshop” without the required notice to the public.
The “workshop” did not go forward after you raised FOIA concerns and thereafter was properly
noticed to the public for a later date. We determine that the Town Council violated the open meeting
requirement of FOIA by, in effect, holding a meeting outside of public view and without notice to the
public in the course of drafting and commenting on a letter to you dated September 28, 2004.
We do not believe that remediation is necessary for that FOIA violation because the
document is now a matter of public record and no purpose would be served in having it re-drafted
and sent after a public meeting. The Town Council is cautioned to strictly comply with the open
meeting requirements of FOIA in the future.
Very truly yours,
Kevin R. Slattery
Deputy Attorney General
APPROVED:
_______________________
Malcolm S. Cobin, Esquire
State Solicitor
Council Member Patrick Cahill
February 3, 2005
Page 8
XC. The Honorable M. Jane Brady
Attorney General
John Terrence Jaywork, Esquire
W. Michael Tupman, Esquire
Deputy Attorney General
Lawrence W. Lewis, Esquire
Deputy Attorney General
Philip G. Johnson
Opinion Coordinator
I:/Kevin.Slattery/Misc./SmyrnaFOIAresponse2

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