Does a Delaware city council violate open meetings law by holding a properly noticed meeting at an unusual time, place, or without a tape recording?

Official title

05-IB04: RE: Freedom of Information Complaint Against City of New Castle

Plain-English summary

New Castle's mayor complained that the city council "thwarted" the spirit of FOIA when it held two budget meetings in June 2004 at an unusual day and time, at the police facility instead of the usual meeting location, without an electronic recording, and without the regular clerk present to take notes. He didn't dispute that the meetings were properly noticed. The AG found no violation. FOIA requires public notice, an agenda, and minutes recording who attended and how each member voted, but it says nothing about where or when a meeting has to be held, doesn't require tape recording, and doesn't require any particular person to prepare the minutes. Delaware case law had already established that minutes don't need to summarize discussions with any specific level of detail, so the minutes actually prepared for these meetings were legally sufficient. The AG found no evidence the council picked the unusual time and place to keep citizens away.

Currency note

This opinion was issued in 2005. 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: Does Delaware's FOIA require public meetings to be held at a regular time and place?
A: No, according to this opinion. FOIA is silent on meeting times and locations, though the AG noted that as good practice, public bodies should still try to schedule meetings conveniently for citizens.

Q: Does a Delaware public body have to tape-record its meetings?
A: No, based on this opinion. The statutory duty to keep minutes does not require electronic recording, only a written record of members present and each vote taken.

Q: How detailed do meeting minutes have to be under Delaware's FOIA?
A: According to this opinion, and the Delaware Chancery Court case it relies on, minutes don't need to summarize the substance of discussions with any particular specificity, only record attendance and votes.

Background and statutory framework

The complaint concerned two New Castle City Council budget meetings held June 23 and June 25, 2004 at an unusual time and location. Applying the open-meeting requirement and notice provisions of 29 Del.C. §10004, including the notice-content requirement at §10004(e)(3), the posting requirement at §10004(e)(4), and the minutes requirement at §10004(f), together with Delaware case law on the required specificity of meeting minutes (Common Cause of Delaware v. Red Clay Consolidated School District Board of Education), the AG found the council's practices complied with FOIA despite the unusual scheduling and lack of a recording.

Citations and references

Statutes:

• 29 Del.C. §10004, every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del.C. §10004(e)(3), meeting notice must identify the dates, times, and locations of meetings and include the agenda if determined
• 29 Del.C. §10004(e)(4), notice must include conspicuous posting at the public body's principal place
• 29 Del.C. §10004(f), public bodies must maintain minutes recording members present and each vote taken

Cases:

• Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., C.A. No. 13798, 1995 WL 733401 (Dec. 5, 1995), meeting minutes need not summarize discussed subjects with any degree of specificity

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/02/11/05-ib04-re-freedom-of-information-complaint-against-city-of-new-castle/
• Original PDF: not linked from landing page

Original opinion text

February11, 2005

Civil Division – New Castle County

05-IB04

The Honorable John F. Klingmeyer

Mayor

City of New Castle

220 Delaware Street

New Castle, DE 19720-4816

Re:  Freedom of Information Complaint

Against City of New Castle

Dear Mayor Klingmeyer:

On October 7, 2004, our office received your Freedom of Information Act

(“FOIA”) complaint alleging that the New Castle City Council (“the Council”)

“thwarted” FOIA’s intent by the manner in which it conducted two Council meetings.

By letter dated October 18, 2004, we asked the City Council to respond to your

complaint. We received the City’s response on October 27, 2004.

The New Castle City Council held public meetings on June 23, 2004 and June 25,

2004 to discuss and approve the City’s annual budget. You do not dispute the fact that

these meetings were properly noticed. Rather, you challenge what you describe as the

“irregular days and times” that the meetings were held and that they were held at the City

Police facility rather than the usual location of Council meetings. In addition, you

challenge the fact that the meetings were not electronically recorded contrary to “normal

practice” and that the clerk of Council who usually takes notes at Council meetings and

subsequently prepares meeting minutes was not personally informed of the meetings and,

therefore, was not in attendance at either meeting. You describe the meeting minutes that

were prepared on behalf of Council as “merely convenient recollections of the President

of Council presented in cursory form.” Finally, you ask this office to direct the President

of City Council to observe the requirements of FOIA and other authorities cited in your

complaint1 “not only in word but spirit, and [to] require and ensure that the secretary

(clerk) be notified and attend all future Council meetings and executive meetings of

Council to record minutes in her usual manner.”

Relevant Statutes

Section 10004 of Title 29 of the Delaware Code provides that “[e]very meeting of

all public bodies shall be open to the public” except as authorized by statute for executive

session. Section 10004(e)(3) further requires all public bodies to give timely notice of

their meetings and to advise the public if they intend to hold a closed executive session.

Such notice must include the agenda, if such has been determined at the time, and must

identify the dates, times and locations of such meetings.

1 In addition to citing various provisions of FOIA that you contend the Council violated in “spirit” you

also quote from The Standard Code of Parliamentary Procedure by Alice Sturgis and Robert’s Rule of

Order Revised. This office has no statutory authority to require compliance with either of the two latter

authorities that you cite.

Section 10004(e)(4) requires that notice “shall include, but not be limited to, conspicuous

posting of said notice at the principal place of the public body holding the meeting, . . . .”

Section 1004(f) requires every public body to “maintain minutes of all meetings,

including executive sessions, conducted pursuant to this section, and shall make such

minutes available for public inspection and copying as a public record. Such minutes

shall include a record of those members present and a record, by individual members

(except where the public body is a town assembly where all citizens are entitled to vote),

of each vote taken and action agreed upon.”

Legal Analysis

As indicated in your complaint, you do not dispute the fact that the June 23, 2004

and June 25, 2004 Council meetings were posted and advertised in conformity with the

provisions of 29 Del.C. §10004(e). Similarly, you did not dispute that minutes were

prepared with respect to both Council meetings. Rather, you assert that by failing to

record the meetings electronically, by failing to have the City clerk take minutes, and by

holding the meetings in a different location within the City and at a different time than

the Council meetings are normally held, the president and Council “thwarted” the intent

of FOIA.

This Office has determined that the statutory duty to maintain minutes of all

public meetings does not require a public body to tape record those meetings. See

Opinion 94-I023 (June 21, 1994) (contrasting §10004(f) with the requirement of 29

Del.C. §10125(d) that administrative hearings be tape-recorded).

Further, the minutes of public meetings need only include “a record of those

members present and a record by individual members (except where the public body is a

town assembly where all citizens are entitled to vote) of each vote taken and action

agreed upon” 29 Del.C. §10004(f). FOIA, however, “neither says that the subject’s

discussion must be summarized [in the minutes] nor attempts to define how specific such

summary should be.” As a result, the Chancery Court has concluded that the minutes of

public bodies need not “summarize the subjects discussed with any degree of specificity.”

Common Cause of Delaware v. Red Clay Consolidated School District Board of

Education, Del. Ch., C.A. No. 13798, 1995 WL 733401 at p. 4 (Dec. 5, 1995) (Balick,

V.C.). The minutes of the meetings in question are legally sufficient.

Additionally, there is no statutory provision in FOIA that requires specific

personal notice to be given to any individual nor is there any requirement that a particular

person be designated to prepare the minutes of public meetings.

Finally, while you have claimed that the meetings at issue were held on “irregular

days and times,” FOIA is silent as to the locations and times of public meetings. As a

matter of good governmental practice, however, public bodies should attempt to schedule

their meetings at times that are convenient to the greatest number of citizens and at

locations that are not only readily accessible but that can also accommodate all who may

want to attend. From the record presented, there is no evidence that the City Council

scheduled the meetings in questions on dates and times or at the particular location in an

attempt to thwart the public’s right to attend the meetings.

For these reasons, this Office finds that the New Castle City Council did not

violate any provisions of FOIA with respect to the manner in which it conducted the June

23, 2004 and June 25, 2004 Council meetings or in the preparation of the meetings’

minutes.

Conclusion

For the foregoing reasons, we find that the City Council did not violate the

requirements of FOIA.

Very truly yours,

Keith R. Brady

Assistant State Solicitor

APPROVED:

Malcolm S. Cobin

State Solicitor

Cc:

Hon. M. Jane Brady

Phillip G. Johnson, Opinion Coordinator