August 1, 2005
Civil Division-Kent County (739-7641)
05-IB21
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950

Re: Freedom of Information Act Complaint
        Against Woodbridge School District

Dear Mr. Kramer:
On June 20, 2005, our Office received your complaint under the Freedom of Information
Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that the Woodbridge School District (“the School
District”) violated FOIA by holding a special meeting on June 13, 2005 without explaining in the
agenda why the School District could not give the normal seven days notice.
By letter dated June 23, 2005, we asked the School District to respond to your complaint
within ten days. We granted the School District’s request for a brief extension of time to
accommodate the vacation plans of the School District’s counsel. We received the School District’s
response on July 15, 2005.
According to the School District, the notice and agenda for the June 13, 2005 special meeting
was posted five days in advance on June 8, 2005. The School District acknowledges that
the notice “did not contain an explanation as to why the meeting was being held with less than 7
days notice” as required by FOIA.
There were two categories of public business on the agenda for the June 13, 2005 special
meeting: (1) the bid results and bid recommendation for an in-town bleacher project; and (2)
personnel (initially discussed in executive session, and then voted on in public session). The
minutes of the June 13, 2005 special meeting show that the School District unanimously approved
four personnel actions, *1 and unanimously voted “[t]o recommend the Southern Bleacher Company
for the bleacher project at $229,100.”
The School District contends that it has voluntarily remediated any FOIA violation
associated with the June 13, 2005 special meeting by re-noticing those matters of public business
for discussion and approval at later meetings.
On June 14, 2005, the School District posted the notice and agenda for a regular meeting to
be held on June 21, 2005, seven days in advance as required by FOIA. The agenda listed for
“Action” under Item X. “Personnel.” The minutes of the June 21, 2005 meeting show that the
School District reconsidered the four personnel matters which it had approved at the special meeting
on June 13, 2005 and unanimously voted to approve them.
The agenda originally posted for the June 21, 2005 meeting did not mention the bleacher
project. The minutes show that the School District amended the agenda during the June 21, 2005
meeting to add two new matters for public discussion: “Bid Results – In Town Bleacher Project”;
and “Approval – In Town Bleachers.” *2 The minutes state that “[t]he low bid from Southern
Bleacher Company in the amount of $229,100 was received. We are recommending formal approval
of this contract from the Board.”
Apparently because of concerns raised by the School District’s counsel, the School District
did not vote to award the bleacher project contract at the June 21, 2005 meeting, but deferred that
vote until the next meeting of the School District.
On June 28, 2005, the School District noticed a meeting to be held on July 5, 2005 seven
days in advance as required by FOIA. The agenda for the July 5, 2005 meeting listed for action “Bid
Approval for the In Town Bleacher project.” The minutes of the July 5, 2005 meeting show that the
School District voted unanimously “[t]o approve the Souther Bleacher Company in the amount of
$229,100 for the in-town bleacher project.”
Relevant Statutes
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. §10004(e)(2). For a special meeting, FOIA allows for notice to be given “as soon as
reasonably possible, but in any event not later than 24 hours of such meeting.” Id. §10004(e)(3).
“The public notice of a special . . . meeting shall include an explanation as to why the notice
required by paragraph (1) of this subsection [seven days] could not be given.” 29 Del. C.
§10004(e)(3).
Legal Analysis
The School District acknowledges that the notice for the June 13, 2005 “special meeting
did not state an explanation why seven-days’ notice could not be given. We find therefore that a
technical violation of FOIA occurred.” Att’y Gen. Op. 04-IB01 (Jan. 28, 2004). The issue then is
whether to require remediation.
In Att’y Gen. Op. 04-IB01, we determined that the city council violated FOIA because “the
notice of the November 20, 2003 special meeting did not state an explanation why seven-days’
notice could not be given.” But we did “not believe that any remediation is required because the
City Council met on December 22, 2003 and lifted the moratorium adopted at the special meeting
on November 20, 2003. . . . Under the circumstances, remediation would not serve any purpose at
this time.”
In Att’y Gen. Op. 01-IB02 (Jan. 30, 2001), we determined that the town council violated
FOIA by not including in the public notice of a special meeting an explanation why seven days’
notice could not be given. We did not direct remediation because “[w]e find that the Town cured
that defect by ratifying the action taken on December 23, 2003 at the meeting of the Town Council
on January 4, 2001.”
We believe that the School District remediated the agenda violation for the June 13, 2005
special meeting by re-noticing the matters of public business approved at the June 13, 2005 meeting
for discussion and approval at meetings on June 21 and July 5, 2005, both of which meetings were
noticed to the public in accordance with FOIA. We do not believe that any further remediation is
required for the initial FOIA violation.
We note, however, that in Att’y Gen. Op. 04-IB05 (Feb. 24, 2004), the School District
committed a similar violation by amending the agenda prior to a meeting but not stating “the reasons
for the delay in posting.” 29 Del. C. §10004(e)(5). In that case, we commended “the School District
for taking steps to cure a FOIA violation before being instructed by this Office to do so.” While we
continue to appreciate the School District’s recognition of its obligations under FOIA and its
responsible action in addressing this matter promptly, we caution the School District to comply with
the public notice requirements of FOIA in the future.
Conclusion
For the foregoing reasons, we determine that the School District violated the open meeting
requirements of FOIA by not giving an explanation in the agenda for the special meeting on June
13, 2005 why seven days’ notice could not be given to the public. Because the School District has
already cured that violation, we do not believe that any further remediation is necessary.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin, Esquire
State Solicitor
cc:
The Honorable M. Jane Brady
Attorney General
James D. Griffin, Esquire
Lawrence W. Lewis, Esquire
Deputy Attorney General
Phillip G. Johnson
Opinion Coordinator
FOOTNOTES
*1 The School District approved the employment of Lee Olmstead as Business
Education Teacher; approved extra days for six individuals; approved the employment of Sara
Carson as Part-Time Temporary Clerk; and approved the employment of Tim Capone as Assistant
Principal.
*2 FOIA authorizes a public body to amend the agenda “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.” 9 Del. C. §10004(e)(2). Arguably, the matter of the bleacher
project “arose” at the time of the June 21, 2005 meeting – as reflected in the minutes – in response
to “correspondence from our attorney concerning a Freedom of Information Act (FOIA) complaint
regarding the June 13, 2005 agenda.”

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