If a town gives five days' notice of a meeting instead of the required seven, but sixty residents still show up, is that a FOIA violation that undoes the meeting?

Official title

97-IB01: FOIA-Complaint Against Town of Laurel

Plain-English summary

A Laurel resident raised two separate FOIA complaints against the town: that it failed to produce about twenty requested public records, and that its Planning Commission's September 1996 meeting on the proposed Laurel Estates and Shopping Mall wasn't properly noticed. On the records request, the town produced most documents and, for the rest, had its Acting Town Manager sign a sworn affidavit stating she had diligently searched town records and simply couldn't find them, which the Attorney General accepted as satisfying FOIA, consistent with its practice in other cases of relying on a custodian's affidavit to confirm nonexistent records.

On the meeting notice, the Attorney General separated two issues. First, it rejected the complainant's argument that the town needed to give special notice to adjoining property owners under its own subdivision regulations, since those local notice rules are distinct from FOIA's notice requirements, and the meeting itself hadn't even discussed the subdivision regulations. Second, on the real FOIA question, the AG found the agenda posted at Town Hall gave the date and purpose of the meeting but left out the time and place, while a newspaper notice published only five days beforehand (not the required seven) supplied all the missing details. Since a large crowd, including the complainant himself and roughly sixty other residents, clearly had actual notice and showed up to protest, the AG treated the short notice as a "technical violation" that didn't harm the public's substantial right to attend, and declined to order the meeting re-noticed, while warning the town that future shortfalls in complying with the Act's meeting-notice rules could be treated as deliberate or part of an ongoing pattern.

Currency note

This opinion was issued in 1997. 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

Q: If a town says requested records simply don't exist, does the Attorney General just take its word for it?
A: Not without more. The opinion describes the Attorney General's practice of requiring the records custodian to sign a sworn affidavit confirming a diligent search turned up nothing, which is what satisfied the request here for the records the town couldn't locate.

Q: Does a town's own subdivision or zoning notice rules count as part of FOIA compliance?
A: No. The opinion held that special-notice requirements for adjoining property owners under local subdivision regulations are separate from, and don't substitute for or expand, FOIA's own meeting-notice requirements.

Q: Does giving five days' notice instead of the required seven automatically undo a public meeting?
A: Not necessarily. The opinion found the short notice was a FOIA violation, but since actual, widespread public notice reached a large crowd of attendees who showed up anyway, it was treated as a harmless technical violation that didn't warrant re-noticing the meeting, though repeated shortfalls going forward could be treated more seriously.

Background and statutory framework

The complainant's records request sought roughly twenty documents from the Town of Laurel; for the ones the town said it could not locate, the AG accepted a sworn affidavit from the Acting Town Manager attesting to a diligent search, following the practice set in Attorney General Opinion 93-IO23. On the meeting notice, the AG applied 29 Del. C. Section 10004(a)'s open-meeting requirement and Section 10004(e)(2)'s seven-day advance notice rule (including date, time, place, and purpose), along with Section 10004(4)'s posting requirements. The posted agenda for the Planning Commission's September 9, 1996 meeting gave the date and purpose but omitted the time and place, while a newspaper notice published only five days in advance supplied the complete information. Citing Ianni v. Department of Elections of New Castle County for the proposition that not every technical shortfall affects "substantial public rights," the AG found the five-day notice a technical violation given the large turnout it produced, while warning under Levy v. Board of Education of the Cape Henlopen School District that future notice failures could be treated as deliberate or part of an ongoing pattern of infractions.

Citations and references

Statutes:

• 29 Del. C. Section 10004(a), general open-meetings requirement
• 29 Del. C. Section 10004(e)(2), seven-day advance notice requirement, including date, time, place, and purpose
• 29 Del. C. Section 10004(4), posting-location requirements for public notice
• 29 Del. C. Section 10005(e), Attorney General's investigation and enforcement authority

Cases:

• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), on technical violations that don't affect substantial public rights
• Levy v. Board of Education of the Cape Henlopen School District, 1990 WL 154147 (Del. Ch. Oct. 1, 1990), on deliberate or ongoing patterns of FOIA infractions

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/01/14/97-ib01-foia-complaint-against-town-of-laurel/

Original opinion text

January 14, 1997

New Castle County – Civil Division

Mr. David F. Edwards, Jr.

114 Lakeside Drive

Laurel, DE 19956

RE: Freedom of Information Act

Complaint against Town of Laurel

Dear Mr. Edwards:

Pursuant to 29 Del. C. Section 10005 (e), the Attorney General’s

Office makes this final written determination of whether a

violation of the Freedom of Information Act, 29 Del. C. Sections

10001-10005 (“FOIA”), occurred. Because of the ongoing nature of

your complaint, a complete procedural recitation is in order.

Your original complaint letter dated November 6, 1996 was

received by this Office on November 12, 1996. By letter dated

November 14, 1996 to the Laurel Acting Town Manager, we asked

that she respond to your allegations that the Town violated the

public records and open meeting provisions of FOIA. We did not

ask the Town to respond to the other allegations in your

complaint, since they “involve matters that are outside the

jurisdiction of the Attorney General’s Office.”

By letter dated November 18, 1996, you posed three questions

regarding the jurisdiction of the Attorney General’s Office. By

letter dated November 22, 1996, we responded to those questions.

By letter dated December 3, 1996, we asked the Town’s attorney

for additional information in order to complete our investigation

of this case. By letter dated December 31, 1996, the Town’s

attorney responded, enclosing the documents we had requested.

Based on all the information and documents provided to us in the

course of our investigation, we make the following written

determination.

By two letters dated October 16, 1996, you asked the Town for

copies of approximately twenty documents. By letter dated

November 26, 1996, the Town’s attorney responded, enclosing some

but not all of those documents, and stating that the other

documents did not exist. At my request, the Town’s attorney

caused to be executed an Affidavit of Bonnie Walls, Acting Town

Manager of the Town of Laurel, sworn to on December 31, 1996,

which states: “That she is executing this affidavit to verify

that she has made a diligent search of the Town records, over

which she has custody, and that she has not been able to locate

the documents specified below requested by David F. Edwards, Jr.,

in his letters dated October 16, 1996.” It is the practice of the

Attorney General’s Office to accept such an affidavit from the

custodian of public records to determine that such documents do

not exist for purposes of FOIA. See Att. Gen. Op. 93-I023 (August

31, 1993) (City of New Castle).

As for the September 9, 1996 public meeting, 29 Del. C. Section

10004 (a) provides that “[e]very meeting of all public bodies

shall be open to the public” except for authorized executive

sessions. Section 10004(e)(2) provides that “[a]ll public bodies

shall give public notice of their regular meetings and of their

intent to hold an executive session closed to the public, at

least 7 days in advance thereof. The notice shall include the

agenda, if such has been determined at the time, and the dates,

times and places of such meetings; . . . .” Section 10004(4)

further provides that public notice “shall include, but not be

limited to, conspicuous posting of said notice at the principal

office of the public body holding the meeting, . . . .”

The documents submitted by the Town’s attorney in response to our

request show that the agenda for the September 9, 1996 hearing

was posted on August 30, 1996, and that notice of the meeting was

published in The Leader/State Register on September 4, 1996. The

minutes of the “regularly scheduled” September 9, 1996 meeting of

the Planning Commission show that there was discussion about the

proposed Laurel Estates and Shopping Mall for approximately one

hour and forty minutes.

The gravamen of your complaint regarding the notice given of the

September 9, 1996 meeting is that it did not comply with the

town’s subdivision regulations by specially notifying adjoining

property owners. The Town of Laurel does not dispute that special

notice was not given. But, according to the Town’s attorney, “it

was announced at such meeting that the discussion would be for

informational purposes only and that a public hearing, as

required by the Subdivision Regulations, would be held at a later

date.” The minutes of the September 9, 1996 meeting show that the

Subdivision Regulations were not discussed. Even if they were,

the notice requirements of those regulations are separate and

distinct from the notice requirements of FOIA.

We conclude, however, that a violation of FOIA occurred in

connection with the September 9, 1996 regularly scheduled meeting

of the Planning Commission. The agenda was posted on August 31,

1996 at the Commission’s principal office, the Laurel Municipal

Building, Poplar & Mechanic Streets. Notice was also given in The

Leader/State Register on September 4, 1996. The agenda gave the

date and purpose of the meeting, but not the time and place of

the meeting. The newspaper notice gave the date, time (7:00

p.m.), and place of the hearing, as well as the purpose of the

meeting to discuss the Laurel Estates and Shopping Mall.

FOIA requires that all pertinent information about a regular

public meeting — date, time, place, and purpose — must be given

at least seven days in advance. In this case, only the newspaper

notice published five days before the meeting contained all the

pertinent information. Adequate notice of public meetings must be

given sufficiently in advance to allow concerned citizens time to

decide whether to attend the meeting and otherwise get involved

in the political process.

In your original letter of complaint, you stated that you in fact

had notice of the meeting from the newspaper publication, as must

have sixty other citizens who you say “showed up in protest.”

Since a large number of concerned citizens clearly had notice of

the September 9, 1996 meeting of the Planning Commission, we find

that five-days’ notice, as opposed to seven days, was a

“technical violation” of FOIA which did not adversely affect

“substantial public rights” to attend the meeting. Ianni v.

Department of Elections of New Castle County, Del. Ch., 1986 WL

9610, at p. 5 (Aug. 29, 1986) (Allen, C.). Nevertheless, the Town

of Laurel is hereby placed on notice that the open meeting

requirements of FOIA are to be strictly complied with, and that

any future violations may be deemed “deliberate” or “an ongoing

pattern of infractions.” Levy v. Board of Education of the Cape

Henlopen School District, Del. Ch., 1990 WL 154147, at p. 7 (Oct.

1, 1990) (Chandler, V.C.).

Based on our review of your complaint, and the responses of the

Town of Laurel, we conclude that there was a violation of the

open meeting provisions of FOIA in connection with the September

9, 1996 regularly scheduled meeting of the Planning Commission.

For the reasons stated above, we do not believe it necessary to

direct the Town of Laurel to re-notice that meeting in order to

validate any action taken at that meeting.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: James F. Waehler, Esquire

Elizabeth A. Bacon, Opinion Administrator