If a town council adds items to its meeting agenda without the required notice explanation, does re-posting them at the next meeting fix the FOIA violation?

Official title

04-IB10: RE: F.O.I.A. Complaint Against Town of Milton

Plain-English summary

A resident complained that the Town of Milton added six new items to its March 1, 2004 town council agenda across a series of revised postings, without ever explaining in those revised agendas why the standard seven-day notice couldn't be met, something FOIA requires for late agenda additions. The town didn't dispute the mistake. Its counsel confirmed the practice going forward would include an asterisk marking any late addition with a reason, and that new postings should never happen within six hours of a meeting. Before being told to fix anything, the town re-posted all six items on its April 5, 2004 agenda, seven days ahead of that meeting. The AG found a technical FOIA violation occurred but concluded no remedy was needed because the town had already cured it on its own, and specifically commended the town for doing so.

Currency note

This opinion was issued in 2004. 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 explain when it adds an item to a meeting agenda less than seven days before the meeting?
A: According to this opinion, the revised notice must briefly state a reason why the standard seven-day notice couldn't be met, even if the reason itself doesn't have to be detailed.

Q: If a Delaware town skips that explanation, does it face a penalty?
A: Not necessarily, based on this opinion. The AG found a technical violation but required no remedy because the town re-posted the same items properly, seven days ahead of its next meeting, before being ordered to.

Q: Does fixing a FOIA mistake before being told to matter to the Attorney General's office?
A: Yes, according to this opinion. The AG specifically commended the town for correcting its own error and treated that voluntary fix as the reason no further remediation was required.

Background and statutory framework

The complaint concerned the Town of Milton's revised agendas for a March 1, 2004 town council meeting, which added six matters of public business without the notice-delay explanation FOIA requires. Applying 29 Del. C. § 10004(e)(2) and § 10004(e)(5), and its prior opinions on that requirement, including Att'y Gen. Op. 94-IO37, Att'y Gen. Op. 98-IB05, Att'y Gen. Op. 96-IB15, and Att'y Gen. Op. 97-IB18, the AG found a technical violation but no need for remediation because the town re-posted the same six items seven days ahead of its next meeting.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), standard seven-day meeting and agenda notice requirement
• 29 Del. C. § 10004(e)(5), six-hour agenda amendment procedure with a required delay explanation

Cases:

• Att'y Gen. Op. 94-IO37 (July 26, 1994), only a reason, not a detailed factual basis, is required for shortened notice
• Att'y Gen. Op. 98-IB05 (July 6, 1998), a FOIA violation is found where notice gives no explanation at all for skipping the seven-day period
• Att'y Gen. Op. 96-IB15 (May 10, 1996), same rule on required notice explanations
• Att'y Gen. Op. 97-IB18 (Sept. 2, 1997), same rule on required notice explanations

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/04/19/04-ib10-re-f-o-i-a-complaint-against-town-of-milton/
• Original PDF: not linked from landing page

Original opinion text

April 19, 2004

Kent County – Civil Division (739-7641)

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

RE: Freedom of Information Act Complaint Against Town of Milton

Dear Mr. Kramer:

On March 10, 2004, we received your letter alleging that the Woodbridge School District (“the Town”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), by failing to give timely notice to the public of agenda items noticed for discussion at a meeting of the Town Council on March 1, 2004.

The Town originally posted the agenda for that meeting on February 23, 2004. The Town posted revised agendas on February 24, February 27, and March 1, 2004. A comparison of the agenda originally posted on February 23, 2004 with the final agenda posted on March 1, 2004 shows that the Town added the following items to the matters of public business to be discussed at the March 1, 2004 meeting: (1) Status of Moratorium; (2) Sewer Reservation Letter; (3) Proposed Property Being Developed within Town’s Potential Annexation Area — Route 30; (4) Round Pole Branch Water and Sewer Construction Change Order — Bob Kerr (5) Wastewater SRF Allocation — Bob Kerr; and (6) Annexation Impact Fee Ordinance.

By letter dated March 12, 2004, we asked the Town to respond to your complaint within ten days. We received the Town’s response on March 22, 2004. The Town does not dispute that it did not explain in the revised agendas for the March 1, 2004 meeting why notice could not have been posted seven days in advance, as required by FOIA. According to the Town, “[t]o the extent some agenda items for the March 1st meeting were posted within seven days of the meeting and did not explain the reasons why they were added, the Town Council has included these items again on their April agenda notice.” The agenda for the Town’s April 5, 2004 meeting, posted seven days in advance, shows that the six matters of public business which are the subject of your complaint were re-noticed for public discussion.

Relevant Statutes

FOIA provides that a public body shall give notice to the public and post an agenda “at least 7 days in advance thereof.” 29 Del. C. § 10004(e)(2). “When an agenda is not available as of the time of the initial posting of the public meeting it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth in the agenda.” Id. § 10004(e)(5).

Legal Analysis

FOIA “requires only a reason, not a specific detailed factual basis, why the seven-day [notice] requirement could not be met.” Att’y Gen. Op. 94-IO37 (July 26, 1994). “But we have consistently found a FOIA violation where the notice failed “‘to provide any explanation whatsoever concerning the reasons why the normal seven day notice requirement could not be given.’” Att’y Gen. Op. 98-IB05 (July 6, 1998) (quoting Att’y Gen. Op. 94-IO37 (July 26, 1994) and citing Att’y Gen. Op. 96-IB15 (May 10, 1996) and Att’y Gen. Op. 97-IB18 (Sept. 2, 1997)).

The Town does not dispute that the revised agendas for the March 1, 2004 meeting did not give even a brief explanation why notice could not have been given at least seven days in advance for the six items added to the agenda. We find therefore that a technical violation of FOIA occurred. No remediation is necessary, however, because the Town voluntarily cured the violation by re-posting those six items for public discussion at the Town’s meeting on April 5, 2004 seven days in advance.

The Town’s counsel has also provided us with a letter dated March 22, 2004 to the Town Mayor explaining that if an “agenda has additions that are included and posted within seven days of the meeting, the agenda should include an asterisk (*) why the matter was placed on the agenda after the seven day requirement. In any event, the posting of a new agenda should not occur within six hours of the meeting.”

We commend the Town for taking steps to cure a FOIA violation before being instructed by this Office to do so. We recognize that mistakes and errors will occur, and appreciate the Town’s recognition of its obligations under FOIA and its responsible action in addressing this matter promptly.

Conclusion

For the foregoing reasons, we determine that the Town violated the open meeting requirements of FOIA by not providing an explanation in the amended agendas for the March 1, 2004 meeting why seven days advance notice to the public could not be given. We do not require remediation because the Town re-posted the items added to the agenda for March 1, 2004 meeting for public discussion at the Town’s next meeting on April 5, 2004 in compliance with FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Timothy G. Willard, Esquire

Phillip G. Johnson

Opinion Coordinator