Can a city council meet with a state transportation agency on less than seven days' notice if the delay was caused by waiting on legal advice?

Official title

97-IB02:FOIA Inquiry-City of Newark Notice of Public Meeting

Plain-English summary

With only two days to go before a scheduled meeting between DelDOT officials and Newark's local elected officials about a road and railroad-crossing intersection, the city's attorney asked the Attorney General whether the council's attendance would itself trigger a FOIA problem, given the AG's prior rulings on Newark council meetings with outside groups (96-IB02 and 96-IB02A). The attorney also noted an earlier request for reconsideration had apparently never reached him due to a mailing mix-up, which the AG's office confirmed and resolved by resending the letter.

The Attorney General advised that the meeting could proceed as scheduled, so long as the city posted a public notice at least 24 hours beforehand under the Act's rule for special or rescheduled meetings, which only requires an explanation for why the usual seven-day notice wasn't possible. The AG found it sufficient to explain that earlier notice couldn't be given because legal opinions from the City Solicitor and the Attorney General's office hadn't yet been obtained. With that notice posted by the end of the business day, the meeting could go forward without violating FOIA; the opinion also expected DelDOT, as the agency that organized the meeting, to issue a similar notice of its own.

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: Can a city council meet with a state agency on short notice if the topic came up unexpectedly?
A: Yes, according to this opinion, so long as the city posts a public notice at least 24 hours in advance under the Act's special-meeting provision and includes an explanation for why the full seven-day notice wasn't given.

Q: Is "we were waiting on legal advice" a good enough reason for shortened meeting notice?
A: In this instance, yes. The AG found it sufficient that the city explained the delay was caused by needing legal opinions from the City Solicitor and the Attorney General's office before the notice could be posted.

Q: If a state agency like DelDOT organizes a joint meeting with city officials, does the city still need its own separate public notice?
A: Yes. The opinion advised that even though DelDOT was expected to issue its own notice as the meeting's organizer, it remained appropriate for the city to separately publish notice of its council's participation in the same meeting.

Background and statutory framework

The inquiry arose from a meeting scheduled for February 13, 1997, between DelDOT officials and Newark's elected officials to discuss plans for the Elkton Road, New London Road, Main Street, and railroad-crossing intersection, called on short notice. Treating the inquiry as a petition under 29 Del. C. § 10005(e), the AG applied 29 Del. C. § 10004(e)(3), which allows a special or rescheduled meeting to be noticed as little as 24 hours in advance provided the notice explains why the standard seven-day notice could not be given. The opinion found that citing the need to first obtain legal opinions from the City Solicitor and the Attorney General was an adequate explanation, and conditioned its conclusion that no FOIA violation would occur on the city posting that notice by the close of business the same day.

Citations and references

Statutes:

• 29 Del. C. § 10005(e), Attorney General's authority to determine whether a FOIA violation has occurred or is about to occur
• 29 Del. C. § 10004(e)(3), 24-hour notice provision for special or rescheduled meetings, with a required explanation for the shortened timeline

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/02/12/97-ib02foia-inquiry-city-of-newark-notice-of-public-meeting/

Original opinion text

February 12, 1997

Civil Division-New Castle County

Sent via facsimile and first class mail.

Roger A. Aiken, Esq.

P. O. Box 390

Newark, DE 19715-0390

Re: Freedom of Information Act Inquiry

Dear Roger:

On February 11, 1997 you addressed a letter to the Attorney

General requesting the Department of Justice’s position

concerning a proposed meeting between DelDot officials and “local

elected officials” for Thursday, February 13, 1997 at 7:30 p.m.

in the city council chambers to discuss DelDOT’s plans for the

intersection of Elkton Road, New London Road, Main Street and a

railroad crossing. Your concern was whether the attendance by

council at a meeting called by DelDOT would constitute a FOIA

violation in light of our ruling of January 2, 1996. In your

letter you also stated that we never responded to your letter of

July 29, 1996 requesting a modification of our January 2nd

opinion. As a result of our phone discussions, we determined that

my letter of October 17, 1996, which was mailed to your address

at the city of Newark, was apparently not received. A copy of

that letter enclosed.

Under 29 Del. C. § 10005(e), we are considering your request as a

petition to determine whether a FOIA violation has occurred or is

about to occur. As you may also know, under that section,

subsection (e) does not apply to potential or alleged violations

of state agencies which are represented by our office.

Based on information which was published in newspapers of record

and considering case law which suggests that meetings of the type

discussed in your letter of February 11th would subject the city

to a potential complaint of FOIA violation, we believe that the

meeting scheduled for February 13, 1997 can go forward as planned

if the city will issue a notice at least 24 hours in advance of

the meeting pursuant to Section 10004(e)(3). Under that

subsection, a public notice of a special meeting shall include an

explanation as to why the required seven day notice was not given

and it is our opinion that it is a sufficient explanation to

state that an earlier notice was not possible because legal

opinions had not been obtained from the City Solicitor and the

Attorney General prior to the posting of the notice. If such a

notice is posted by the close of business today, February 12,

1997, it is our opinion that a FOIA violation will not occur and

that the meeting may go forward as scheduled. It is also our

understanding that DelDOT will also issue a similar notice since

it is the agency which set up the meeting. It would still be

appropriate for the city to publish a notice of a meeting of its

council for the same time setting forth the receipt of

information from DelDOT as a purpose for the meeting.

Please feel free to call me if you have any further questions

concerning this matter.

Very truly yours,

Michael J. Rich

State Solicitor

Enclosure

cc: Hon. M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

Michael W. Tupman, Deputy Attorney General

Frederick H. Schranck, Deputy Attorney General