Date Posted: Monday, March 27th, 2006
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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Date Posted: Monday, January 23rd, 2006
Complainant alleged that the Smyrna Town Council violated FOIA’s open meeting laws by holding a meeting, which was attended by two council members, without notice to the public to discuss an amendment to the Town’s Charter. The Town argued that the meeting was not a “public meeting” as defined by FOIA because a quorum of the members did not attend, and the two members in attendance did not constitute a subcommittee or ad hock committee subject to open meeting law. HELD: When a public body holds a “joint meeting” of various constituents and members of the public body, the AGs office determines: (i) whether this group of individuals from different organizations amounted to a public body under FOIA; and (ii) if not, whether the representatives present at the meeting constituted an ad hoc or subcommittee of the public body. In this case, the people in attendance at the meeting did not amount to a public body under FOIA. There was also no evidence in the record that suggested the Town appointed or established a committee that was represented at the challenged meeting.
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Date Posted: Monday, January 9th, 2006
Complainant alleged that the Town of Dagsboro (“Town”) violated FOIA by (i) failing to prepare minutes of executive sessions since June 2004; (ii) providing complainant with redacted copies of executive session minutes after they were prepared almost one year later; and (iii) discussing matters of public business in executive session for a purpose not authorized by law.
Held: (i) The Town violated FOIA by not preparing timely minutes of 11 executive sessions over a one year period. Although FOIA does not set a time limit for a public body to prepare minutes of its meeting, a reasonable time is by the time of the public body’s next scheduled meeting. A public body must be able to explain its failure to prepare and approve minutes in a timely manner; (ii) the burden of proof is on the custodian of records to justify the denial of access to records. The Town failed to meet this burden with respect to most minutes because it did not articulate reasonable and legitimate reasons why public disclosure of the executive session minutes would defeat any lawful purposes for those executive sessions. However, minutes relating to ongoing negotiations regarding a property acquisition could be withheld pursuant to 29 Del. C. §10004(f) until the conclusion of the acquisition; and (iii) FOIA does not authorize a discussion of a personnel handbook and delinquent taxes in executive session. It does authorize discussions involving the hiring and subsequent resignation of a new town administrator in executive session. However, because the alleged FOIA open meetings violations occurred more than six months before the petition, the AGs office will not require remediation. However, the public body must make the minutes of the unauthorized executive session open for public inspection.
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Date Posted: Monday, January 9th, 2006
Del. Op. Atty. Gen. 06-IB02 (Del.A.G.), 2006 WL 1242011 Office of the Attorney General State of Delaware Opinion No. 06-IB02 January 9, 2006 Re: Freedom of Information Act Complaint Against Town of Dagsboro *1 Mr. William B. Chandler, III 600 Main Street P.O. Box 87 Dagsboro, DE 19939 Dear Mr. Chandler: Our Office received your […]
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Date Posted: Wednesday, January 4th, 2006
The City of Wilmington Board of License and Inspection Review (“Board”) met in executive session on May 9, 2005 to decide an appeal for a one-time waiver of a vacant building registration fee. The complainant argued that the executive session was improper. The Board argued that complainant’s appeal was not timely and remediation was unnecessary because the decision to meet in executive session was inadvertent and constituted harmless error.
Held: The City of Wilmington Board of License and Inspection Review (“Board”) violated FOIA when it deliberated in executive session for a purpose not authorized by FOIA. Additionally, the decision reached by the Board affected a “substantial right” that would normally require remediation by the AG’s office. However the AG declined to order remediation because the matter was pending before the Superior Court of Delaware and the FOIA claims could be raised in that forum.
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Date Posted: Thursday, October 13th, 2005
Complainants allege that the Town Council violated FOIA open meeting and public records requirements by not: (1) timely posting public notice of a meeting; (2) ensuing the venue for the meeting of the Council was large enough to accommodate the public; (3) the Town Council met in executive session on for purposes not authorized by law; (4) the Town Council reached a consensus on matters of public business in executive session before voting on those matters in public without any further discussion; (5) the Town did not prepare and maintain minutes a meeting; and (6) the Town did not provide a requester with access to the minutes of prior Council meetings. Held: the Town did not violate FOIA in that it (1) posted timely public notice of a meeting held on July 7, 2005; (2) provided the public with reasonable access to attend the meeting; (3) prepared and maintained minutes of the meeting; and (4) provided reasonable access to minutes of previous meetings of the Town Council. However, the Town did violate FOIA by privately discussing the 2005-2006 budget prior to the meeting and then approving the budget without any discussion in public thereby depriving the public of the opportunity for the public to monitor and observe the budget approval process. The Town also failed to meet its burden of proof that it did not discuss two other matters of public business (code enforcement and real estate taxes), neither of which matters FOIA authorized for private discussion.
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Date Posted: Wednesday, September 7th, 2005
Complainant alleges that the County Council violated the FOIA open meeting requirements by holding a “special meeting” for 7 of the 13 members of the Council to discuss a pending lawsuit with the County Attorney because a meeting of 7 members of the County Council constitutes a meeting of a ‘public body.’ The ‘Special Meeting Notice’ appears to exclude not only the public but also the remaining County Council members who are not the subject of a recently filed lawsuit.” Held: the Council did not violate the open meeting requirements when 9 members of the Council met in executive session to discuss pending litigation with the County Attorney. FOIA authorizes the Council to meet in private with the County Attorney to discuss litigation strategy because an open meeting would have had an adverse effect on the litigation position of the Council and the individual defendants.
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Date Posted: Monday, August 29th, 2005
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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Date Posted: Thursday, August 18th, 2005
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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Date Posted: Monday, August 15th, 2005
Complainant alleged that the County Council violated the FOIA open meeting requirements by: (1) adding two items to the agenda during a meeting; and (2) voting in executive session at that same meeting to approve a land acquisition. Held: although the Council met in executive session for a purpose authorized by FOIA—to discuss site acquisitions—the Council did violate FOIA when it added two items (executive session to discuss site acquisitions, and airport perimeter fence) to the agenda for the meeting at the start of the meeting because those matters did not arise at the meeting, and came to the attention of the County Administrator before the meeting. The Council could have amended the agenda to include those two new matters at least six hours in advance of the meeting.
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