OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 13-IB02
May 1, 2013
VIA EMAIL AND REGULAR MAIL
Mr. Daniel J. Kramer
8041 Scotts Store Rd.
Greenwood, DE  19950
djmjkramer@gmail.com
Re:    FOIA COMPLAINT AGAINST SUSSEX COUNTY COUNCIL
Dear Mr. Kramer:
We hereby respond to your petition, received May 23, 2012, wherein you ask this Office to determine whether certain language used by the Sussex County Council (the “Council”) in its meeting agendas is permissible under the “open meeting” and related provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).¹ Specifically, the petition questions whether the Council is permitted to include in its agendas certain form catchall language that is designed to permit the Council to discuss and take action on topics that arise after an agenda is filed.  As discussed below, we find the Council’s agenda practices troubling, but we are not convinced, based on the unique facts presented in this case, that the Council’s use of such language violated FOIA.
I.    BACKGROUND
The facts here are straight forward and undisputed.  The Council admits that it has a long-standing practice of including in its public meeting agendas a generic “statement of intent” to convene in executive session (the “Generic Statement”).  The Generic Statement includes references to four open meeting exemptions (the “Exemptions”) that the Council frequently invokes to discuss public business in closed session.  It reads:
Executive Session — Job Applicants’ Qualifications, Personnel, Pending/Potential Litigation, and Land Acquisition pursuant to 29 Del. C. § 10004(b).
The Council also has a long-standing practice of including in its agendas the following recurring “action” item:  “Possible Action on Executive Session Items” (the “Recurring Agenda Item,” and together with the Generic Statement, the “Form Language”).  The Council admits that the Form Language is used to ensure that topics brought to the attention of the Council after a particular agenda is posted, but before the subject meeting, can be discussed and acted upon in a timely manner, rather than being put off to a later Council meeting.
The petition focuses on two specific instances where the Form Language was used — namely, in the agendas for the Council meetings held on April 3, 2012 and May 8, 2012 (the “Meetings”).  At the time the Meeting agendas were published, the Council, contrary to the Generic Statement, had no specific intention of holding an executive session based on any particular Exemption.  Nor did the Council have a reasonable expectation that it would need to take action on matters discussed in executive session, as suggested by the Recurring Agenda Item.  Because no new issues arose after the Council posted the Meeting agendas, the Council, at the beginning of both Meetings, voted to and did amend the agendas by deleting all references to the Form Language.  The Council did not convene in executive session, or take action on any items discussed in executive session, at either Meeting.
II.    DISCUSSION
The petition asserts that the Council’s agenda practices are improper under FOIA.  Though we do not find specific FOIA violations relating to the Meetings at issue, we agree that the Council’s agenda practices are problematic.  The Form Language in the Meeting agendas contains incorrect and potentially misleading information about the conduct of the Council’s public meetings.  The Form Language also is inconsistent with FOIA’s agenda amendment requirements.  To avoid potential FOIA violations and other problems in the future, we urge the Council to revise its agenda practices in accordance with our recommendations below.
A. The Form Language Contains Incorrect And Potentially Misleading Disclosures.
FOIA expressly requires public bodies to publish, in advance of a public meeting, a meeting agenda identifying important matters that a public body expects to discuss or take action on at a public meeting.  See 29 Del. C. § 10002(a) (requiring that agendas include “a general statement of the major issues expected to be discussed at a public meeting”).  FOIA further requires public bodies to disclose in their agendas when they intend to convene in executive session and the statutory basis or bases for discussing public business in closed session.  See id. (requiring that agendas include “a statement of intent to hold an executive session and the specific ground or grounds therefor”); see also; 29 Del. C. § 10004(c) (“The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in [FOIA § 10004(b)].”).
Agenda disclosures are important.  Members of the public are entitled to and routinely do make decisions based on agenda disclosures.  Indeed, that is the primary purpose of an agenda.  As we recently observed:
The . . . agenda disclosure requirements are necessary to ensure that the public receives adequate advance notice of all important matters that will be discussed and possibly voted upon at a public meeting.  Without adequate disclosure, members of the public are unable to make informed decisions as to whether (or not) to attend particular public meetings to observe and monitor a public body’s performance on matters of interest to them.
Att’y Gen. Op. 13-IB01 (March 26, 2013).  We think the agenda disclosures required by FOIA are in the nature of public representations.  They should be true and accurate when made.
The Meeting agendas and the Form Language therein contained the following representations:
• that the Council intended to convene in executive session at the Meetings;
• that the Council intended to discuss matters covered by all four Exemptions while in executive session; and
• that the Council anticipated discussing and possibly voting on one or more of the matters discussed in executive session upon returning to open session.
None of the foregoing representations was true or accurate when the Meeting agendas were published.
The Council is responsible for the content of its meeting agendas.  Had a citizen reasonably relied on the Meeting agendas to his or her detriment, we likely would have found that the Council’s use of the Form Language violated the spirit if not the letter of FOIA.  The record in this case, however, contains no such evidence.  In the future, we urge the Council to take reasonable steps to ensure that agenda disclosures and other representations made to the public are true and accurate when made.
B. The Council Cannot Circumvent FOIA’s Agenda Amendment Requirements.
The Form Language is inconsistent with, and cannot be used to circumvent, FOIA’s agenda amendment requirements.  As we recently observed, public bodies are permitted under FOIA to amend timely posted meeting agendas to include new action or discussion items, but only when the following conditions are met:
First, public bodies must publish an amended agenda describing adequately the new items “at least 6 hours in advance of the meeting.”  29 Del. C. § 10004(e)(5).  Second, public bodies must include in the amended agenda a brief statement describing the reasons for the delay in providing notice of any new agenda items.  See id. Finally, [when] an amended agenda is filed less than 7 days in advance of the meeting, . . . public bodies [must] make an additional showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention.²
Att’y Gen. Op. 13-IB01 (March 26, 2013).
The Council’s mere inclusion of the Form Language in the Meeting agendas did not, without more, run afoul of FOIA’s agenda amendment requirements.  The Council did not have occasion to rely on the Form Language in connection with the two Meetings at issue.  We note that the Council likely would have violated FOIA had it addressed, at one or both of the Meetings, a new issue without complying fully with FOIA’s agenda amendment requirements.  See Att’y Gen. Op. 13-IB01 (finding FOIA violations where school board’s amended agenda did not state reasons why new items were omitted from the original agenda).  That situation is not presented here.
We recommend that the Council comply fully with all of FOIA’s agenda amendment requirements going forward.  We note that the Council must adhere to FOIA’s agenda amendment provisions in order to address, validly, a topic that arises after an agenda is filed but before the start of the subject Council meeting.  Any vote or other action taken with respect to an agenda item improperly added to a meeting agenda would be subject to challenge and invalidation under FOIA § 10005(a) (“Any action taken at a meeting in violation of [FOIA] may be voidable by the Court of Chancery.”).
III.    CONCLUSION
For the foregoing reasons, we conclude that the Council’s agenda practices, while not violative of FOIA on the facts presented in this case, are problematic.  We suggest that the Council (a) to take steps to ensure that future agenda disclosures are true and accurate when made and (b) comply fully with FOIA’s agenda amendment requirements going forward.
Very truly yours,
Jason W. Staib
Deputy Attorney General
Approved:
/s/ Allison E. Reardon
Allison E. Reardon
State Solicitor
cc:    J. Everett Moore, Jr., Esquire (via email)
FOIA Opinion Distribution List (via email)
FOOTNOTES
¹ The Council is a “public body” within the meaning of FOIA.  See 29 Del. C. § 10002(h).  As such, the Council is subject to the “open meeting” requirements of FOIA.  See 29 Del. C. § 10004.
² FOIA contains a separate provision dealing with agenda amendments for issues that arise after a public meeting is called to order.  See 29 Del. C. § 10004(e)(2) (“[T]he 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.”).  That provision is not at issue here.

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