April 6, 2006
06-IB08
Ms. Barbara Pyle
18073 Atlanta Road
Bridgeville, DE 19933
RE: Freedom of Information Act Complaint
Against Woodbridge School District
Dear Ms. Pyle:
On January 24, 2005, we received your letter alleging that the Woodbridge School District
(“the School District”) violated the open meeting requirements of the Freedom of Information Act,
29 Del. C. Chapter 100 (“FOIA”), by failing to post the agenda for a public meeting at least seven
days in advance. Specifically you allege that on December 15, 2005, the School District posted an
amended agenda for a meeting scheduled for December 20, 2005 with “no explanation given on the
agenda as to why the item or items [added to the agenda] were not available at the time of the
original posting [on December 12, 2006], as required by FOIA and by previous Attorney General
opinions.”
By letter dated January 30, 2006, we asked the School District to respond to your complaint
within ten days. We granted the School District a brief extension of time, and received the School
District’s response on February 16, 2006. We asked the School District for additional information, which we received on February 17, 2006.
According to the School District, on December 12, 2005 the School District posted the notice
and agenda for a public meeting scheduled for December 20, 2005. The School District re-posted
the agenda for the December 20, 2005 public meeting on December 15, 2005.
The two-page agenda that you attached to your complaint apparently was not the complete
amended agenda posted on December 15, 2005. The School District has provided us with the
complete amended agenda, which is four pages. That amended agenda added two items of public
business for discussion: Item V.B. EDIS Presentation Regarding Bid Pack B – Farm Property; and
Item X.A. Request to Approve Bid Pack B. An asterix (*) appears next to both items, crossreferencing
to page 4 of the amended agenda, which reads: “* THESE ITEMS ARE BEING ADDED
TO THE AGENDA DUE TO RECEIPT OF INFORMATION REGARDING THE ITEMS AFTER
THE ORIGINAL POSTING OF THE AGENDA.”
By letter dated February 17, 2006 (which we received on February 21, 2005), you sent us
another copy of the amended agenda for the School District’s December 20, 2005 meeting. That
amended agenda is double-sided (page 2 is the back side of page 1, and page 4 is the back side of
page 3. At the bottom of page 3 the amended agenda is printed “-OVER-“ and page 4 contains the
asterix with the reasons for the delay in posting the two items added to the agenda. You contend that
“the posting of the agenda with the items of the backside does not constitute ‘conspicuous’ posting
as required by Del. C. §10004(e)(4).”
RELEVANT STATUTES
FOIA provides that a public body shall give notice to the public of a regular meeting and post
an agenda “at least 7 days in advance thereof.” 29 Del. C. §10004(e)(2). The agenda must include
“a general statement of the major issues expected 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.
§10001(f)).
FOIA authorizes a public body to amend an agenda up to “6 hours in advance of said
meeting,” but “the reasons for the delay in posting shall be briefly set forth in the agenda.” Id. §
10004(e)(5).
FOIA provides that “[p]ublic notice required by this subsection shall include, but not be
limited to, conspicuous posting of said notice at the principal office of the public body holding the
meeting, or it no such office exists at the place where meetings of the public body are regularly held,
and making a reasonable number of such notices available.” Id. §10004(e)(4).
LEGAL AUTHORITY
“FOIA provides two distinct methods to amend an agenda. First, FOIA allows a public body
to change an 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.’ 29 Del. C.
§10004(e)(2). Second, FOIA allows a public body to amend an agenda when it ‘is not available at
the time of the initial posting of the public notice’ so long as it is added ‘to the notice at least 6 hours
in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda.’ Id. §10004(e)(5).” Att’y Gen. Op. 03-IB22 (Oct. 6, 2003) (emphasis added). 1
We have previously recognized “that the business of government does not stop seven days
before a public meeting, but FOIA provides flexibility for a public body to amend the agenda up to
six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later
meeting.” Att’y Gen. Op. 03-IB22 (Oct. 6, 2003) (school district only learned of the need for a
construction contract change order the morning of the scheduled meeting, “but it did not avail itself
of this exception by posting an amended agenda six hours in advance”).
In this case, the School District availed itself of this exception by posting an amended agenda
five days in a advance of the December 20, 2005 meeting to add “EDIS Bid Pack B — Farm
Property.” That amended agenda complied with Section 10004(e)(5) of FOIA by stating that the
reason for the delay in posting the EDIS bid specifications was “due to the receipt of information
regarding the items after the original posting of the agenda.” The Superintendent confirmed by letter
dated February 14, 2006 to the School District’s counsel that the School District “did not receive the
specifications for Bid Pack B until December 15, 2005 and on that same date we reposted the agenda
for the agenda to include that item on the December 20, 2005 agenda.”
That does not end our inquiry, however. In previous opinions, “[w]e have cautioned that this exception does not authorize a public body to amend the agenda prior to a meeting for any reason,
but rather applies ‘to add items that come up suddenly and cannot be deferred to a later meeting.’”
Att’y Gen. Op. 05-IB15 (June 20, 2005) (quoting Att’y Gen. Op. 05-IB09 (Apr. 11, 2005)).
According to the School District, it did not receive the bid specifications from its
construction manager (EDIS) until December 15, 200 (five days before the scheduled December 20,
2005 public meeting). The School District needed to approve the bid specifications before sending
them to prospective bidders on a project involving four separate contracts. As explained by the
School District: “The bids on this construction project were scheduled to be opened on January 31,
2006 and the [School District] had been advised by its construction manager to allow at least a 30
day window between posting and advertising notice of the projects and sending bid specifications
to prospective bidders prior to the scheduled bid opening on January 31, 2006.” According to the
School District, if it had not approved the EDIS bid specifications at its meeting on December 20,
2006, that would have delayed the construction project because the next regularly scheduled meeting
of the School District was not until January 24, 2006.
We are satisfied that under these circumstances there was a sufficient reason for the School
District to amend the agenda five days before the December 20, 2005 meeting to include the EDIS
bid specifications which the School District did not receive until December 15, 2005.
The final issue for our consideration is whether the posting of a double-sided agenda satisfied
FOIA’s requirement that a public body post an agenda “conspicuously.” “The purposed of requiring
conspicuous posting of notice at the public body’s principal office ‘is to ensure that no member of
the public will have to search out to discover public meetings.’” Att’y Gen. Op. 97-IB13 (June 2,
1997) (quoting Att’y Gen. Op. 96-IB26 (July 25, 1996)). In those earlier opinions, however, the
public body did not post the agenda at its principal office but rather in a local newsletter or a county
administrator’s report. Here, there is no dispute that the School District posted the amended agenda
for the December 20, 2005 meeting at its principal office. The issue is not the place of posting, but
rather the form.
We do not believe that the use of a double-sided agenda puts a burden on members of the
public to search out to discover public meetings. There is no evidence in the record that any
members of the public were mislead into not attending the School District’s December 20, 2005
meeting because they were not aware of the matters of public business noticed on the backside of
the agenda. Even if a citizen flipped from the first to the second page of the amended agenda, it is
clearly numbered “Page 3″ and the agenda items on the first page (I. through VI.) skipped to Item
X. In addition, at the bottom of “Page 3″ the agenda states “-OVER-“ alerting the reader that there
is a fourth page. 2
CONCLUSION
For the foregoing reasons, we determine that the School District did not violate the open
meeting requirements of FOIA. Pursuant to Section 10004(e)(5) of FOIA, the School District
amended the agenda for the December 20, 2005 meeting at least six hours in advance to include two
new items, and the School District stated the reason for the additions in the amended agenda. The
record shows that there was a sufficient reason for the School District to amend the agenda five days
before the December 20, 2005 meeting to include the EDIS bid specifications which the School
District did not receive until December 15, 2005.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
__________________________
Lawrence W. Lewis, Esquire
State Solicitor
cc:
The Honorable Carl C. Danberg
Attorney General
Malcolm S. Cobin, Esquire
Chief Deputy Attorney General
Keith R. Brady, Esquire
Assistant State Solicitor
James B. Griffin, Esquire
Phillip G. Johnson
Opinion Coordinator

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