What does a city council have to do before it can legally close a meeting to the public?

Official title

97-IB19: FOIA Complaint Against Milford City Council

Plain-English summary

A newspaper editor complained that the Milford City Council went into executive session at two meetings, on August 11 and 21, 1997, without following any of FOIA's required steps: the posted agenda didn't say the council might close the meeting or why, the council never took a public vote to go into executive session, and no minutes of the closed sessions were kept. The council's own attorney admitted the sessions "were not held in full compliance with the Act," though he stated no votes were taken behind closed doors. The AG walked through the four things FOIA requires before a public body can lawfully meet in private: announce the purpose in advance, approve the closed session by a public vote, keep the closed discussion limited to a topic the law actually allows, and prepare minutes. Milford failed on essentially all of them. Because a violation of these requirements makes any resulting council action voidable, the AG ordered Milford to re-notice and redo the matters discussed at both meetings, this time following every step correctly: proper advance notice of the possible executive session and its legal basis, an open vote of the council to close the meeting, discussion limited to a lawful purpose, and minutes of what happened in the closed session.

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: What does a public body have to do before closing a meeting to the public?
A: At the time of this opinion, FOIA required four things: advance public notice of the intent to hold an executive session and why, an open vote of the body to approve going into the closed session, limiting the closed discussion to a lawful purpose, and keeping minutes of the session.

Q: Does simply saying "Special Meeting" on the agenda, without more, satisfy the notice requirement for an executive session?
A: No, according to this opinion. Milford's agenda for both meetings only listed a case name, with no statement that the council intended to close the meeting or under what legal ground, which the AG found fell short of FOIA's notice requirement.

Q: If a council admits it didn't follow FOIA's executive-session rules, what happens to what it decided in that meeting?
A: The AG's opinion here found that any action taken during a meeting held without following FOIA's requirements is voidable, and directed the council to redo the meetings in full public compliance rather than simply letting the earlier decisions stand.

Q: Can a public body avoid FOIA violations just by not knowing the rules?
A: No. The opinion specifically warned that a lack of knowledge of FOIA's requirements does not excuse noncompliance, and suggested that a body unsure of the rules should have its attorney available to advise it.

Background and statutory framework

The complaint concerned two Milford City Council meetings in August 1997 where the agenda referenced only a case name ("Special Meeting - Perdue/David Bates") without disclosing any intent to hold an executive session or the statutory ground for it. Applying 29 Del. C. Section 10002(f)'s definition of what an agenda must include and Section 10004(e)(2)'s seven-day advance notice requirement, along with Section 10004(c)'s requirement of an open vote to enter executive session and Section 10004(b)'s enumerated permissible grounds, the AG found Milford failed every element the Delaware Court of Chancery laid out in Levy v. Board of Education of Cape Henlopen School District: advance public announcement of the closed session's purpose, an approving public vote, a closed discussion limited to an authorized topic, and minutes of the session. Because the council conceded these failures and Section 10005(a) makes action taken in violation of FOIA voidable, the AG ordered Milford to re-notice and hold the meetings anew in full compliance, rather than simply cautioning the council for the future as it might have done with a more technical violation.

Citations and references

Statutes:

• 29 Del. C. Section 10002(f), definition of "agenda" and its required contents, including notice of intent to hold executive session
• 29 Del. C. Section 10004(b), the nine authorized grounds for entering executive session
• 29 Del. C. Section 10004(c), requirement of an open, recorded vote to enter executive session
• 29 Del. C. Section 10004(e)(2), seven-day advance notice requirement for regular meetings and intent to hold executive session
• 29 Del. C. Section 10005(a), voidability of action taken in violation of FOIA

Cases:

• Levy v. Board of Education of Cape Henlopen School District, 1990 WL 154147 (Del. Ch. Oct. 1, 1990), setting out the four requirements to lawfully convene an executive session

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/10/20/97-ib19-foia-complaint-against-milford-city-council/

Original opinion text

October 20, 1997

New Castle County – Civil Division

Mr. Gregory S. Layton

Milford Chronicle

P.O. Box 297

Milford, DE 19963

RE: Freedom of Information Act Complaint

Against Milford City Council

Dear Mr. Layton:

In your letter dated September 5, 1997 (received by this Office

on September 8) you alleged that the Milford City Council (the

“Council”) had violated the Delaware Freedom of Information Act,

29 Del. C. Sections 10001-10005 (“FOIA”), in connection with two

meetings on August 11 and 21, 1997. Specifically, you allege that

the agenda posted for those meetings did not indicate that the

Council might go into executive session and the reason(s)

therefor, and that the Council did not vote in public to go into

executive session. Your letter also suggests that the Council may

have gone into executive session for a purpose other than

authorized by law.

By letter dated September 9, 1997, we asked the Council to

respond to your complaint. By letter dated September 26, 1997

(received by this Office on September 29), the Council responded

through its attorney, admitting “that the executive sessions were

not held in full compliance with the Act.” He further stated: “No

votes were taken at the executive sessions. The City regrets any

inconvenience and concern caused to the public and the press and

intends to proceed in full compliance with [FOIA] at all future

meetings.”

STATUTORY PROVISIONS

FOIA requires 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.” 29 Del. C. Section 10004(e)(2). The agenda must

include not only “a general statement of the major issues to be

discussed at a public meeting,” but also “a statement of intent

to hold an executive session and the specific ground or grounds

therefor under subsection (b) of Section 10004 of this title.” 29

Del. C. Section 10002(f). Section 10004(b) sets forth nine

authorized grounds for a public body to go into executive

session.

In order to go into executive session, there must be an

“affirmative vote of a majority of members present at a meeting

of the public body. The vote on the question of holding an

executive session shall take place at a meeting of the public

body which shall be open to the public, and the results of the

vote shall be made public and shall be recorded in the minutes.”

29 Del. C. Section 10004(c).

OPINION

Under FOIA, “to convene in executive session, the public body

must satisfy several requirements”: (1) publicly announce the

purpose of the closed meetings in advance; (2) approve holding

such a session by a majority vote; (3) limit the agenda of the

closed session to public business that falls within one of the

purposes allowed for such meetings; and (4) prepare minutes of

any closed session. Levy v. Board of Education of Cape Henlopen

School District, Del. Ch., 1990 WL 154147, at p.3 (Oct. 1, 1990)

(Chandler, V.C.).

The Council does not dispute that it failed to comply with any of

these requirements with respect to the meetings held on August 11

and 21, 1997. In particular, the agenda stated only that there

would be a “Special Meeting – Perdue/David Bates,” but did not

inform the public that the Council intended to go into executive

session. The Council did not vote in public to go into executive

session, nor were minutes of the executive session maintained.

Because of these violations of FOIA, any action taken by the

Council at those meetings is voidable. See 29 Del. C. Section

10005(a).

To remedy these violations of FOIA, we direct the Council to

re-notice the matters that were the subject of discussion at

those two meetings for another meeting open to the public. This

should be done in strict compliance with the requirements of

FOIA, both with respect to the specifics of public notice, and

the mechanics of going into executive session. A majority of the

Council must vote in public to go into executive session.

Additionally, the purpose for which the Council goes into

executive session must be one permitted under FOIA. After the

Council votes to go into executive session, the public may be

excused, but the public may return after the executive session is

over to observe any further proceedings of the Council which are

not within a statutory exception for executive session. The

Council is reminded it must also prepare minutes of the executive

session so that, if necessary, it can be ascertained at a later

date whether the Council stayed within the confines of the

subject(s) authorized by FOIA for executive session.

The Council is cautioned that it must strictly comply with the

requirements of the open meeting laws in the future. A lack of

knowledge of the requirements of the law will not suffice to

defend against a complaint of failure to comply with FOIA. If the

Council is unsure about any particular legal requirement, it “can

have its attorney on hand to advise it.” Levy, 1990 WL 154147, at

p. 9.

Conclusion

For the foregoing reasons, we determine that the Council violated

the open requirements of FOIA in the notice and conduct of the

meetings on August 11 and 21, 1997. The Council is directed to

hold those meetings anew in full compliance with FOIA, and to

strictly comply with the requirements of FOIA in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

James A. Fuqua, Jr., Esquire

Chrystyna Lafferty, Opinion Coordinator