Is it a FOIA violation if a Delaware town posts meeting notice six days instead of seven before the meeting?

Official title

17-IB49 9/29/2017 FOIA Opinion Letter to Mr. Richard Cross re: FOIA Complaint Concerning The Town of Dewey Beach

Plain-English summary

Attorney Richard Cross petitioned the AG alleging the Town of Dewey Beach violated FOIA's meeting-notice rules for three meetings scheduled for September 13, 14, and 15, 2017, and that the executive session purpose noticed for those meetings was inadequate. The Town canceled the September 14 and 15 meetings, mooting those allegations, leaving only the September 13 meeting at issue.

On the executive session point, the AG found the Town's notice, an intent to discuss "the content of documents excluded from the definition of public record," a permissible and adequately specific basis, even though the agenda mistakenly cited the wrong subsection. On timing, the Town posted notice only about six days and two and a half hours before the meeting, short of FOIA's seven-day requirement, and the record was unclear about exactly when the Town made its scheduling decision. Because the Town bears the burden of proving compliance, the AG found a technical violation of the notice requirement. But since the meeting's only agenda item was a properly-noticed executive session and no substantive votes occurred (aside from the procedural vote to go into executive session), the AG concluded FOIA's purposes were not meaningfully frustrated and declined to order any remedy.

Currency note

This opinion was issued in 2017. 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

How much advance notice must a Delaware public body give for a regular meeting?

At least seven days under 29 Del. C. § 10004(e)(2). Special or rescheduled meetings, defined as ones held less than seven days after the scheduling decision, instead require notice as soon as reasonably possible but no later than 24 hours before the meeting, along with an explanation of why full notice couldn't be given.

Who has to prove whether notice was timely, the town or the person complaining?

The public body does. The AG applied 29 Del. C. § 10005(c), which puts the burden of proof on the public body, and found that because the record did not clearly establish when Dewey Beach made its scheduling decision, the town had not carried that burden, resulting in a technical violation.

If a meeting technically violates FOIA's notice rule, does that mean the AG will order a new meeting or void what happened?

Not necessarily. This opinion followed Delaware case law holding that not every technical violation warrants a remedy, particularly where, as here, no substantive decision was made at the meeting beyond the procedural step of entering executive session for a proper purpose.

Can a public body just list every possible executive-session reason to be safe?

No. This line of Delaware cases has repeatedly warned that an agenda must state the actual, specific reason for an executive session rather than a generic catch-all list of statutory grounds, even though the reason need not be described in exhaustive detail.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires seven days' notice of regular meetings and their agendas (§ 10004(e)(2)), with a shorter, explanation-backed notice period for genuinely special or rescheduled meetings (§ 10004(e)(3)). A public body may hold an executive session to discuss documents excluded from the public-record definition (§ 10004(b)(6)) without detailing the specific documents at stake. The public body bears the burden of proving its own compliance in a FOIA petition (§ 10005(e), § 10005(c)). Delaware courts have cautioned that FOIA exists to keep public business visible to citizens, not to create "hyper-technical requirements that serve as snares for public officials," so a technical notice shortfall does not automatically require a remedy where no substantive public business was transacted without adequate notice.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10005(c) (public body bears the burden of proof)
• 29 Del.C. § 10004(b)(6) (executive session for documents excluded from "public record")
• 29 Del. C. § 10004(e)(2) (seven-day notice for regular meetings)
• 29 Del. C. § 10004(e)(3) (shortened notice for special or rescheduled meetings, with required explanation)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007) (agenda need not elaborate in detail on subjects to be discussed in executive session)
• Ianni v. Dep't of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (not every technical FOIA violation warrants relief)
• Lechliter v. Del. Dep't of Nat. Res. & Environ. Contr., 2017 WL 117596 (Del. Ch. Jan. 12, 2017) (FOIA's purpose is transparency, not hyper-technical snares for officials)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/10/05/17-ib49-9292017-foia-opinion-letter-mr-richard-cross-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/10/Attorney-General-Opinion-No.-17-IB49.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB49

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB49

September 29, 2017

VIA U.S. MAIL & EMAIL

Richard H. Cross, Jr.

Cross & Simon, LLC

1105 North Market Street, Suite 901

Wilmington, DE 19801

[email protected]

RE: September 11, 2017 FOIA Correspondence Regarding the Town of Dewey Beach

Dear Mr. Cross:

We write regarding your correspondence, received on September 11, 2017, alleging that the Town of Dewey Beach (the "Town") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA").[1] We treat your correspondence as a petition for determination, pursuant to 29 Del. C. § 10005(e), of whether a FOIA violation has occurred ("Petition").[2] In your Petition, you allege that the Town violated FOIA by failing to post notice of meetings that the Town intended to hold on September 13, 14, and 15 at least seven days in advance thereof.[3] You also allege that the noticed purposes for the executive sessions of those meetings was inadequate. As the Town cancelled the September 14 and 15 meetings, it is our determination your allegations concerning those meetings are now moot. With respect to your allegations concerning the September 13, 2017 meeting, it is our determination that the Town did not violate FOIA by noticing an intent to convene an executive session to discuss "documents excluded from the definition of public record where such discussion may disclose the content of such document." However, the Town has failed to sustain its burden to demonstrate timely notice. We do not believe remediation to be warranted under the circumstances.

RELEVANT FACTS

At 2:30 PM on September 7, 2017, the Town posted notice of a meeting to be held at 5:00 PM on September 13, 2017. The notice included the following statement: "Documents relevant to discussion were not received in excess of the notice requirement." The notice also included the agenda. The main item on the agenda was: "Executive session to discuss the content of documents excluded from the definition of public record where such discussion may disclose the content of such document pursuant to 29 Del.C. § 10004(6) [sic]."

DISCUSSION

The Town Did Not Violate FOIA by Noticing an Intent to Convene an Executive Session Pursuant to 29 Del. C. § 10004(b)(6).

As an initial matter, we conclude that the Town did not violate FOIA by noticing an intent to convene an executive session to discuss "the content of documents excluded from the definition of public record where such discussion may disclose the content of such document pursuant to 29 Del.C. § 10004(6) [sic]." This is a permissible purpose for executive session. As FOIA does not require the Town to provide additional detail,[4] it is our determination that the Town did not violate FOIA by noticing an intent to convene an executive session pursuant to 29 Del.C. § 10004(b)(6).[5]

The Town Has Failed to Sustain its Burden to Demonstrate Compliance with FOIA's Notice Provisions with Respect to its September 13, 2017 Meeting

FOIA requires public bodies to "give public notice of their regular meetings . . . at least 7 days in advance thereof."[6] For any special or rescheduled meeting, the public body shall give public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting."[7] However, "[t]he public notice of a special or rescheduled meeting shall include an explanation as to why [seven days' notice] could not be given."[8] Importantly, a "special or rescheduled meeting" is defined as "one to be held less than 7 days after the scheduling decision is made."[9]

In its Response Letter, the Town acknowledges that it posted notice of its September 13 meeting less than seven days in advance thereof.[10] The Town nonetheless notes that it posted said notice six days, two and one-half hours prior to the meeting, and that the notice contained an explanation for the delay.[11] The Town argues that "the explanation for why only six plus days' notice was given, although concise, was adequate."[12] You challenge the veracity of the Town's explanation.

Under the circumstances, we conclude that the Town's conduct amounted to, at most, a technical violation of the notice provisions of the FOIA statute. To the extent the scheduling decision was made at least seven days in advance of the meeting, the Town violated FOIA by failing to provide seven days' notice thereof.[13] If, in fact, the scheduling decision was made less than seven days in advance, we note that the Town was required to, and did, provide an explanation as to why seven days' notice could not be given.[14] Here, the record is not clear regarding when the scheduling decision was made. As the Town bears the burden of proof pursuant to 29 Del. C. § 10005(c), we are constrained to conclude that the Town violated FOIA by failing to provide seven days' notice of its September 13, 2017 meeting.

Importantly, we do not believe remediation to be warranted. Indeed, "[n]ot every failure to comply with precision to the terms of [FOIA] will involve substantial public rights and thus not every technical violation will support either a declaratory judgment or, more importantly, injunctive relief."[15] As Vice Chancellor Glasscock recently warned:

[T]he purpose of FOIA is to ensure that public business is done in the open, so that citizens can hold public officials accountable. The purpose of FOIA is not to provide a series of hyper-technical requirements that serve as snares for public officials, and frustrates their ability to do the public's business, without adding meaningfully to citizens' rights to monitor that business.[16]

Here, the only item on the agenda was an intent to convene an executive session. As we have already determined, the Town identified a permissible basis for the executive session in its meeting agenda. In addition, there was no identifiable action taken during the September 13, 2017 meeting (aside from the procedural vote to convene the executive session).[17] Under the circumstances, we cannot conclude that FOIA's purposes were frustrated by a delay of less than one day in posting notice and an agenda for a meeting called for the sole purpose of convening an executive session for a permissible purpose, and during which no substantive votes were taken.

CONCLUSION

Based upon the foregoing, we conclude that the Town's conduct amounted to, at most, a technical violation of the statute with regard to timely notice of its September 13, 2017 meeting. However, for the reasons set forth above, we do not believe remediation to be warranted.

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

Approved:

Aaron R. Goldstein

State Solicitor

cc:

LaKresha S. Roberts, Chief Deputy Attorney General (via email)

Frederick A. Townsend, III (via email)

[1] As we stated in our September 12, 2017 letter to the parties, we do not address the allegation contained in your September 12, 2017 correspondence, as that allegation is currently pending before the Court of Chancery.

[2] While we note that you raised additional allegations in your September 20, 2017 correspondence, this determination is limited to the allegations contained in your September 11, 2017 correspondence.

[3] In his September 15, 2017 response to the petition ("Response Letter"), Mr. Townsend states that your complaint included an allegation regarding the Town's September 18, 2017 meeting. However, as we see nothing in your September 11, 2017 correspondence regarding the September 18, 2017 meeting, we do not address it here. Similarly, we do not address the allegations raised for the first time in your September 20, 2017 correspondence. Of course, you are free to include those allegations in a new petition.

[4] See O'Neill v. Town of Middletown , 2007 WL 2752981, at 7 (Del. Ch. Mar. 29, 2007) ("Although more precise reasons could have been offered by the Council and the Planning Commission, the reasons they did articulate on the agendas satisfy the FIOA. The statute requires public bodies to provide the reason for entering into an executive session, but that does not require public bodies to elaborate in great detail on the agendas what legal, personnel, or other subjects are to be discussed. Therefore, the Court concludes that there is no triable issue of fact regarding the sufficiency of the stated reasons for the executive sessions.") (internal citations omitted); Common Cause of Del. v. Red Clay Consolidated Sch. Dist. Board of Educ. , 1995 WL 733401, at 2 (Del. Ch. Dec. 5, 1995) ("Although the Board's most frequently stated purpose for calling executive sessions during the period in question was the need for strategy sessions concerning the desegregation case, notices also stated other proper statutory purposes, such as legal advice with respect to collective bargaining or contract negotiations, disciplinary cases, and personnel matters. 29 Del. C. § 10004(b). There is no question that the notices stated proper purposes for executive sessions.").

[5] Notwithstanding the typographical error, the agenda clearly demonstrates that the Town was referring to 29 Del. C. § 10004(b)(6).

[6] 29 Del. C. § 10004(e)(2).

[7] 29 Del. C. § 10004(e)(3).

[8] Id.

[9] Id.

[10] Response Letter at 2.

[11] Id.

[12] Id. at 3.

[13] See 29 Del. C. § 10004(e)(2).

[14] See 29 Del. C. § 10004(e)(3) ("The public notice of any special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (e)(2) of this section could not be given.").

[15] Ianni v. Dep't of Elections of New Castle County , 1986 WL 9610, at *6 (Del. Ch. Aug. 29, 1986).

[16] Lechliter v. Del. Dep't of Nat. Res. & Environ. Contr. , 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017).

[17] See O'Neill , 2007 WL 275981, at 10 (declining to order remediation following improper executive sessions because "there was no identifiable 'action' taken during these executive sessions" and "[t]he record d[id] not support any reasonable inference that the executive sessions somehow made the outcome a foregone conclusion (or even more likely)."). We do not mean to suggest that there can be never be a remedy where a public body privately meets and no formal action was taken. See Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist. , 1990 WL 154147, at 6 (Del. Ch. Oct. 1, 1990).