If a newly formed Delaware county committee gathers on just 24 hours' notice but doesn't actually discuss any county business, does that violate the open meeting law?

Official title

04-IB21 Re: Freedom of Information Act Complaint Against Sussex County Council

Plain-English summary

A resident complained that a newly created Sussex County housing committee violated the open meeting law by gathering for its first meeting on just 24 hours' notice instead of the usual seven days. The County Council had voted to create the committee on October 12, and the committee posted notice the same day for a gathering the very next morning, explaining that it hadn't been able to post earlier because the committee didn't exist until the Council voted it into being.

The AG found the short notice itself was not properly justified, since the County could have posted the standard seven-day notice even before the Council formally approved the committee, and just canceled it if the Council had decided not to move forward. But the AG found no FOIA violation anyway, because the actual gathering on October 13 wasn't a "meeting" that triggers the open meeting law at all: members were specifically told when they arrived that no business would be discussed due to a question about whether the committee could even legally meet yet, and the group simply introduced themselves, learned the dates of their first two real working meetings, and had lunch before leaving. Since nothing resembling public business was actually discussed, the gathering fell outside FOIA's reach regardless of the notice problem.

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

If a new Delaware government committee didn't exist yet, can it use that as a reason to skip the normal seven-day meeting notice?

Not automatically, according to this opinion. The AG found the county could have posted the standard seven-day notice for the committee's anticipated first meeting even before it was formally created, and simply canceled the notice if the committee wasn't approved, so the newness of the committee alone wasn't a valid excuse for shorter notice.

Does a gathering of a public body's members automatically count as an illegal "meeting" if it wasn't properly noticed?

No, according to this opinion. The AG found that a gathering only triggers the open meeting law if the members actually discuss or take action on public business, so a purely social get-together where members were told not to discuss any county business didn't qualify as a "meeting" even though the notice itself was flawed.

Can members of a new government committee meet informally just to introduce themselves without violating the open meeting law?

Yes, according to this opinion, as long as they don't discuss or act on any actual public business at that gathering. The AG accepted that a purely introductory, social lunch where members learned only administrative details like future meeting dates did not amount to a "meeting" under FOIA.

Background and statutory framework

Delaware's FOIA requires seven days' notice of a public body's regular meetings, 29 Del. C. § 10004(e)(2), but allows a special meeting on shorter notice, no later than 24 hours beforehand, id. § 10004(e)(3). FOIA defines a "meeting" as a quorum gathering "for the purpose of discussing or taking action on public business," 29 Del. C. § 10002(e), and "public business" as any matter over which the body has "supervision, control, jurisdiction or advisory power," id. § 10002(b). Applying its own established standard requiring "some showing of an exigent circumstance or compelling need" to justify shorter special-meeting notice, the AG found the county's stated reason (the committee didn't yet exist) insufficient, since notice could have been posted in advance of the committee's anticipated creation. But because the actual gathering involved no discussion of public business at all, the AG found the threshold question of whether a "meeting" occurred cut off the analysis before the notice defect mattered.

Citations

• 29 Del. C. § 10004(e)(2) (seven-day notice for regular meetings)
• Id. § 10004(e)(3) (special meeting notice, no later than 24 hours beforehand)
• 29 Del. C. § 10002(e) (definition of "meeting")
• Id. § 10002(b) (definition of "public business")

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/12/20/04-ib21-re-freedom-of-information-act-complaint-against-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 04-IB21 (Del.A.G.), 2004 WL 5249147

Office of the Attorney General

State of Delaware

Opinion No. 04 – IB21

December 20, 2004

Re: Freedom of Information Act Complaint Against Sussex County Council

*1 Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

Dear Mr. Kramer:

On November 4, 2004, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), alleging that a committee of the Sussex County Council ("the Council") violated FOIA by meeting on October 13, 2004 without giving seven days notice to the public.

By letter dated November 16, 2004, we asked for the Council's response, which we received on December 1, 2004.

According to the Council, at a meeting on October 12, 2004 the Council voted to create a Moderately Priced Housing Program Initiative Committee ("the Committee") to address the need for moderately priced housing in Sussex County and to develop program standards.

It is not disputed that the Committee posted notice on October 12, 2004 of its first meeting to take place the next day, on October 13, 2004. The agenda for the October 13, 2004 meeting noted that it had not been posted earlier because the "Committee was not established until October 12, 2004." The County also pointed out in its response that "most of the members were from outside of the Georgetown area and invitations had been extended in anticipation that the County Council would approve the Committee" at its meeting on October 12, 2004.

According to the County, "on October 13, 2004, the Committee members were told on arrival that there was a question as to whether or not the Committee could legally meet and that no business would be conducted. The members were asked to introduce themselves and were told that the first meeting would be held on Wednesday, November 10 and the second meeting on Wednesday, December 8 to begin putting together the recommended standards for the County's moderately priced housing program …. After that, lunch was served and representatives departed without discussing or conducting business."

It is not disputed that the Committee posted notice of its meetings on November 10 and December 8, 2004 in compliance with FOIA.

Relevant Statutes

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. § 10004(e)(2). For a special meeting, FOIA allows for notice to be given "as soon as reasonably possible, but in any event not later than 24 hours of such meeting." Id. § 10004(e)(3).

FOIA defines a "meeting" as the "formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." 29 Del. C. § 10002(e). FOIA defines "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power." Id. § 10002(b).

Legal Analysis

*2 Our Office "has interpreted the shorter notice period allowed by FOIA for a special meeting to require some showing of an exigent circumstance or compelling need for the public body to hold a special' meeting to discuss a matter of public business." Att'y Gen. Op. 03-IB19 (Aug. 8, 2003). The Council posted notice of the Committee's first meeting 24 hours in advance, but we do not believe the record shows any exigent circumstance or compelling need not to give the normal seven-days notice required by FOIA. Notice could have been posted at least seven days in advance even if the Committee had not as yet been formed, and canceled if for some reason the Council decided at its October 12, 2004 meeting not to form a committee.

We determine, however, that the gathering of the individual members of the Committee on October 13, 2004 did not amount to a "meeting" subject to FOIA because the members of the Committee did not discuss any matters of "public business." The record shows that the members of the Committee were specifically advised not to discuss any matters of public business, and that the gathering was for the sole purpose to give the members of the newly-formed Committee an opportunity to meet each other and enjoy a social lunch.

Conclusion

For the foregoing reasons, we determine that the Committee did not violate the open meeting requirements of FOIA on October 13, 2004 because it did not discuss any matters of public business.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved

Malcolm S. Cobin, Esquire

State Solicitor

Del. Op. Atty. Gen. 04-IB21 (Del.A.G.), 2004 WL 5249147