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Delaware Department of Justice
Attorney General
Kathy Jennings




 Pages Categorized With: "10002(a) Agenda"

06-IB18: Re: Freedom of Information Act Complaint Against Town of Smyrna

Complainant alleged that the Town of Smyrna violated the open meeting requirements of FOIA by (i) not providing timely notice to the public of a special meeting of the Town; and (ii) not disclosing in the agenda for the meeting that the Council would discuss appointing a Vice Mayor. HELD: (i) the notice of the public meeting violated FOIA by failing to explain why a special meeting was required without providing 7 days notice; and (ii) the agenda violated FOIA b/c it did not indicate that the Town would be discussing the appointment of a Vice Mayor at the special meeting.

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06-IB15: RE: Freedom of Information Act Complaint Against Brandy wine School District Board of Education

Complainant alleged that the Brandywine School District Board of Education violated FOIA’s open meeting requirements by (i) not providing sufficient notice to the public about the matters the Board would discuss in executive session; (ii) discussing matters of public business in private not authorized by FOIA; and (iii) not preparing adequate minutes of executive session meetings. The Board contended it only discussed job applicants and personnel matters in executive session and the minutes were prepared using the format it uses for executive session and that the form complied with FOIA. HELD: (i) The Board violated FOIA’s notice requirements by not disclosing in the agenda that the Board would discuss the qualifications of job applicants for the position of superintendent; (ii) the Board violated FOIA’s notice requirements by discussing several procedural matters at the meeting which FOIA did not authorize for executive session; but (iii) the format of the minutes of the executive session—which included the names of Board members in attendance, the motion to vote and go into executive session, the general nature of the matters discussed, and the motion and vote to adjourn the executive session–did not violate FOIA b/c they met the minimum requirements of FOIA. There is no clearly implied statutory requirement to summarize the subjects discussed with any degree of specificity in the minutes of executive sessions.

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06-IB05: Re: Freedom of Information Act Complaint Against City of Newark

Complainant alleged that the Newark City Council violated FOIA’s open meeting requirements by discussing public business at a meeting without providing the public with sufficient notice on the agenda. HELD: The notice requirements of FOIA do not preclude members of the public or the public body from raising a matter of public business outside the agenda. However, when a substantial matter not specifically noticed for public discussion comes up at a public meeting, there must be a compelling reason why the issue cannot wait for discussion until a later meeting to allow for proper notice under FOIA. It is not sufficient to state that no “formal action” was taken because action by a public body includes fact gathering, deliberations and discussions, all of which influence the public body’s final decision. In this case, the minutes of the meeting indicated that the Council engaged in a substantial discussion of a matter not on the meeting Agenda. Therefore, the discussion violated FOIA’s notice requirements. However, no remediation was necessary because the agenda for the very next Council meeting indicated that the discussion would continue at the next meeting, and that agenda and notice complied with FOIA.

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05-IB26: Re: Freedom of Information Act Complaint Against Town of Middletown

Complainant alleged that the Town violated the FOIA open meeting requirements by not: (1) giving the public adequate notice of matters to be discussed under the agenda headings “Old Business” and “Unfinished Business”; (2) giving the public adequate notice of matters to be discussed in executive session under the agenda heading “Personnel and Legal Matters”; (3) following the proper procedures forgoing into executive session; and by (4) allowing members of the public who are not members of the Town Council to attend executive sessions. The Complainant also alleges that the Town violated the public records requirements of FOIA by denying access to requested minutes of executive sessions. The Town did not violate the public notice requirements of FOIA by: (1) discussing informational-only matters and hearing comments and questions from citizens during the period of public meetings reserved for “New Business” or “Unfinished Business”; (2) using a shorthand agenda heading (“Personnel” or “Legal Issues”) to give notice to the public that the Town Council would meet in executive session and for what purpose; or (3) by voting to go into executive session at the start of the next month’s meeting of the Council, so long as the Town properly noticed the executive session in the agenda for the next month’s meeting and the Council voted again in public to go into executive session. However, the Town did violate FOIA by denying access to the minutes of executive sessions because the Town has failed to show either that: (1) the Town Council met in executive session for a purpose authorized by law; or (2) disclosure at this time would defeat the lawful purpose for an executive session authorized by law.

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05-IB24: Re: Freedom of Information Act Complaint Against Town of Dagsboro

Complainant alleged that the Town violated FOIA by: (1) failing to notice in the agenda for a meeting that after executive session the Town Council would return to public session to vote on several matters of public business; (2) meeting in executive session to discuss matters of public business for purposes not authorized by law; and (3) denying access to the complete minutes of the executive session. Held: the Town violated the open meeting requirements of FOIA by: (1) meeting in executive session to discuss 5 matters of public business not authorized by law for private discussion; and (2) failing to notice in the meeting agenda that the Town Council would return to public session after the executive session to discuss and vote on 2 matters of public business. The Town also violated the public records requirements of FOIA by not providing requestor copies of the minutes of the executive session redacted only to exclude 2 personnel matters in which the Town Council discussed the abilities and competency of individual employees.

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05-IB11: Re: Freedom of Information Act Complaint Against City of Dover

The Complainant alleged the City violated open meeting requirements by discussing pension plan investment strategy at a meeting of the City Council, but the agenda did not identify for that meeting. Held: the Council properly deferred any further discussion on the merits of the issue until it could be noticed to the public in accordance with FOIA after the matter of pension investment strategies was raised during the council member comment period of a meeting.

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03-IB22: RE: Freedom of Information Act Complaint Against Woodbridge School District

The Complainant alleged that the Woodbridge School District (“the School District”) violated FOIA by not providing timely notice to the public that the School District would approve a change order to increase the cost of a construction contract. Held: the School District violated the open meeting requirements of FOIA by failing to give timely notice to the public that it would discuss a change order to a construction contract.

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02-IB12: Re: Freedom of Information Act Complaint Against Fenwick Island Town Council

Complainant alleged that the Town of Fenwick Island (“the Town”) violated FOIA by: (1) failing to give the public notice of its intent to go into executive session at a meeting on February 8, 2002; (2) improperly entering into executive session at that meeting to discuss pay raises for police officers; (3) failing to give adequate notice to the public that it would go into executive session at a meeting on February 22, 2002; (4) improperly entering into executive session at that meeting to discuss police department problems; (5) failing to give adequate notice to the public of its intent to go into executive session at a meeting on March 16, 2002; (6) impermissibly entering into executive session at that meeting to discuss personnel and legal problems involving the police department; and (7) not providing you with copies of the minutes of executive sessions. Held: the Council violated the open meeting requirements of FOIA when it went into executive session to discuss matters of public business at its meetings on February 8, February 22, and March 16, 2002. The Council violated the agenda requirements of FOIA by amending the agenda just prior to the meeting on March 16, 2002, and without stating the reason for the delay. Finally, the Council violated the public records requirements of FOIA by denying access to the minutes of executive sessions which were not authorized by law.

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01-IB10: Re: Freedom of Information Act Complaints Against Sussex County Council

The Complainant alleged that the Sussex County Council violated the Freedom of Information Act (“FOIA”) by (i) giving inadequate notice of a public “workshop” to discuss hurricane evacuation strategies and beach traffic; and (ii) giving inadequate notice of its consideration of the issuance of $4.5 million in bonds at committee and council meetings. Held: With respect to the “workshop,” the Attorney General rejected the council’s contention that it did not need to provide notice because no formal action was taken at the meeting. Fact gathering and discussion meetings such as the one at issue fall squarely within the open meeting requirements of FOIA. Given the nature of the meeting, however, no remediation was required for this violation. As for the committee and council meetings, the Attorney General found that the agenda item indicating that an application by a specific company would be considered at the meeting was insufficient notice when the nature of the application – a request for the issuance of $4.5 million in industrial revenue bonds – was not described at all. As a remedial measure, the Attorney General ordered the application process to start again, from the beginning, with a duly noticed meeting.

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00-IB18: Re: Freedom of Information Act Complaint Against City of Newark

Complainant alleged that the City of Newark violated the Freedom of Information Act (“FOIA”) by failing to provide him with information and by providing inadequate notice of its intent to vote on a new power generating project. Held: FOIA does not require a public body to create documents that do not already exist, so there was no violation with respect to the Complainant’s request for information. As to the notice issue, a “general statement” of the issues expected to be discussed is sufficient under FOIA, so an agenda that included the proposed power generation project as an item for discussion did not need to also specify that the council might vote to authorize the project. There was no FOIA violation.

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