Does a school board's informal 'agenda prep' meeting before its regular meeting count as a meeting under Delaware's open-meetings law?

Official title

10-IB04 RE: Freedom of Information Act Complaint Against Christina School District

Plain-English summary

Two Newark residents complained that the Christina School District Board of Education held a March 6, 2010 meeting without posting a proper agenda, and that the board never kept minutes of the informal "Agenda Preparation Meetings" it regularly held the Monday before its monthly public meeting.

The board admitted both problems and committed to fixing them going forward: posting agendas for every meeting as FOIA requires, and starting to keep minutes of its agenda-prep sessions. Because the meetings in question were open to the public, people actually attended, and no votes were taken at any of them, the AG found no need to require a do-over. But the AG used the opinion to correct what looked like a deeper misunderstanding: the board seemed to think FOIA's meeting requirements only kicked in when it took formal action, when in fact FOIA's definition of a "meeting" covers any gathering of a quorum, formal or informal, to discuss public business at all, whether or not a vote ever happens.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a school board have to keep minutes of an informal meeting where it just planned the agenda for its next public meeting?

Yes, according to this opinion. FOIA's minutes requirement applied to any gathering of a quorum discussing public business, not just meetings where the board formally voted.

If a public body admitted it did not post a proper meeting agenda, did the AG always require the meeting to be redone?

Not necessarily, according to this opinion. Because the meeting was open, the public actually attended, and no votes were taken, the AG found no need for a remedial meeting once the board admitted the violation and committed to fixing it.

Did Delaware's open meetings law only apply to meetings where a public body took an official vote?

No, according to this opinion. FOIA's definition of a "meeting" covered any formal or informal gathering of a quorum to discuss public business, regardless of whether a vote occurred.

Background and statutory framework

FOIA required that notice of a regular meeting include the agenda, 29 Del. C. § 10004(e)(2), and required public bodies to keep minutes of their meetings. Id. § 10004(f). FOIA defined a "meeting" as "the formal or informal gathering of a quorum of the members of any public body" to discuss or act on public business. Id. § 10002(b).

Because the board had already admitted its notice failure and its failure to keep minutes of the agenda-preparation sessions, and because those sessions were open, attended by the public, and produced no votes, the AG found no basis for a remedial meeting. The AG's caution rested on the statute's plain text: § 10002(b)'s definition of "meeting" reaches informal gatherings of a quorum discussing public business, not only sessions where the board takes formal action, so the board's minutes and notice obligations applied to its agenda-preparation sessions just as much as to its regular monthly meetings.

Citations

• 29 Del. C. § 10004(e)(2) (notice of a regular meeting must include the agenda)
• 29 Del. C. § 10004(f) (public bodies must keep minutes of their meetings)
• 29 Del. C. § 10002(b) (defining "meeting" as a formal or informal gathering of a quorum to discuss or act on public business)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/04/14/10-ib04-re-freedom-of-information-act-complaint-against-christina-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB04 (Del.A.G.), 2010 WL 1818073

Office of the Attorney General

State of Delaware

Opinion No. 10-IB04

April 14, 2010

RE: Freedom of Information Act Complaint Against Christina School District

*1 Ms. Elizabeth Scheinberg

1 Boca Court

Newark, DE 19702

Mr. John M. Young

109 Cypress Dr.

Newark, DE 19713

Dear Ms. Scheinberg and Mr. Young:

On March 11, 2010, the Delaware Department of Justice (“DDOJ”) received your complaint alleging that the Christina School District Board of Education (“the Board”) violated the Freedom of Information Act (“ FOIA ”) by conducting a meeting on March 6, 2010 that was not properly noticed and failing to keep minutes of “Agenda Preparation Meetings” held by the Board on the Monday before the Board’s regularly scheduled monthly public meeting. On March 12, 2010, the DDOJ forwarded your complaint to the Board, which promptly requested an extension of time in which to respond. We received its response on April 1, 2010.

In its response, the Board admits that the posted notice of the March 6 meeting did not include an agenda, as required by 29 Del. C. § 10004 (e)(2), and commits to posting agendas for all Board meetings in the future. It also admits that it has not been keeping minutes of its agenda preparation meetings, as required by 29 Del. C. § 10004 (f), and represents that it will do so in the future. Because the Board meetings in question were all open to the public and were, in fact, attended by members of the public, and because no votes were taken at any of the meetings, there is no reason to require a remedial meeting of the Board. However, it appears from the Board’s response to your complaint that the Board may be misconstruing FOIA’s definition of a public meeting, which is not limited to meetings where “action is taken by the Board.” We caution the Board to apply the requirements of FOIA to all meetings of a quorum, even when the Board meets informally to discuss public business. 29 Del. C . § 10002 (b).

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Del. Op. Atty. Gen. 10-IB04 (Del.A.G.), 2010 WL 1818073