If a school board adds a bid decision to its meeting agenda late, does it have to explain exactly why in detail?

Official title

08-IB06 03/27/08 FOIA Opinion Letter to Mr. Kramer re: FOIA Complaint Concerning Woodbridge School District

Plain-English summary

A Woodbridge parent complained that the school district awarded a pole-building construction contract at a January board meeting without ever putting it on the agenda, and separately complained the district never explained why it later added the same bid results to a different meeting's agenda after the fact.

Both complaints fell apart on the facts. The minutes of the January meeting showed the board never actually discussed or voted on the pole building at all; a staff email claiming otherwise turned out to be a mistake. And when the district did add "pole building bid results" to the agenda for its February 12 meeting, after the original agenda had already been posted, it was not silent about why: the amended agenda itself said the item was being added "due to the necessity of Board Action after the original posting," and a follow-up letter explained that the delay involved a last-minute site issue with underground storm drainage lines. The AG explained that FOIA only requires a brief reason for a late addition, not a detailed factual account, so that explanation was enough. The AG separately noted it also looks at whether a late-added item could simply have waited for the next fully noticed meeting instead, but in this case that question ended up not mattering: the district re-posted the pole building contract for a March 4 meeting with full seven-day notice anyway, curing any possible defect before the AG even had to rule on whether one existed.

Currency note

This opinion was issued in 2008. 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

How much explanation did a Delaware public body have to give when adding an item to a meeting agenda less than seven days before the meeting?

Just a brief reason, not a detailed factual justification, according to this opinion. A single sentence on the amended agenda explaining that board action had become necessary after the original posting was enough.

If meeting minutes contradicted an earlier staff email about what a board decided, which one controlled?

The official minutes, according to this opinion. The AG relied on the board's recorded minutes over a staff member's mistaken email to determine that no vote on the pole building contract had actually occurred at the January meeting.

Did re-posting a delayed agenda item for a later, fully noticed meeting fix an earlier notice problem?

Yes, according to this opinion. Even where it was not clear the district needed to act immediately, re-noticing the contract for a later meeting with full seven-day notice remedied any potential FOIA defect.

Background and statutory framework

FOIA required public bodies to give seven days' public notice of regular meetings, including the agenda "if such has been determined at the time," 29 Del. C. § 10004(e)(2), and provided that when an agenda item was not available at the time of the initial posting, it could be added "at least 6 hours in advance of said meeting," as long as "the reasons for the delay in posting shall be briefly set forth on the agenda." Id. § 10004(e)(5).

The AG applied its established rule that FOIA "requires only a reason, not a specific detailed factual basis, why the seven-day requirement could not be met," and separately looks at whether a delayed agenda item could instead have been postponed to a later meeting to preserve full public notice. Because the district's amended agenda gave a brief, on-its-face reason for the delay, and because the pole building contract was ultimately re-noticed and awarded at a fully noticed March 4 meeting regardless, the AG found no FOIA violation and no remediation was needed.

Citations

• 29 Del. C. § 10004(e)(2) (regular meetings require seven days' public notice including the agenda, if determined at the time)
• 29 Del. C. § 10004(e)(5) (an agenda item unavailable at initial posting may be added at least six hours before the meeting if the reasons for the delay are briefly stated on the agenda)

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/03/27/08-ib06-032708-foia-opinion-letter-to-mr-kramer-re-foia-complaint-concerning-woodbridge-school-district/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 08-IB06

March 27, 2008

Mr. Daniel J. Kramer

8041 Scotts Store Rd.

Greenwood, DE 19950

RE: Freedom of Information Act Complaint Against Woodbridge School District

Dear Mr. Kramer:

On March 5, 2008 the Delaware Department of Justice ( DDOJ ) received your letter of that date alleging that the Woodbridge School District (the “ District ”) violated the Freedom of Information Act ( FOIA ) regarding the award of a contract to build a pole building. On March 6, 2008 we sent that complaint to the District and requested their response by March 16, 2008. On March 12, 2008 we received and forwarded to the District your February 19, 2008 letter alleging that the District did not give a reason for adding the pole building bid results to the agenda originally posted on February 5, 2008. We received the Town’s response on March 17, 2008.

The Relevant Facts

According to your complaint, a January 16, 2008 email message from the District’s Supervisor of Administrator Services stated that the pole building contract was awarded at the January 15, 2008 board meeting, despite the fact that the pole building was not on the agenda for that meeting. In response to your complaint, the District asserted that the Supervisor of Administrative Services made a mistake in his January 16 email. It further provided us with the minutes for the January 15 meeting. According to the minutes, there was neither discussion nor vote concerning the pole building.

The second issue you raise is that the agenda posted on February 5 for the February 12 meeting did not list the pole building matter, and when the District added the pole building to the agenda on February 7, it did so without explanation for the delay. The District points out that the February 7 agenda stated: “Pole building bid results are being added to this agenda…due to the necessity of Board Action after the original posting.” In its letter of February 25, 2008 to Jim Griffin, Esquire, on which you were copied, the District noted that “[o]n Wednesday February 6, 2008, the district became aware the pole building placement could occur; with a slight adjustment, as planned at the farm location. The matter was in question due to the under ground storm drainage lines and their potential ability to limit the building location.”

Relevant Statutes

FOIA provides that “[a]ll public bodies shall give public notice of their regular meetings…at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time….” 29 Del. C. § 10004(e)(2). “When the agenda is not available as of the time of the initial posting of the public notice 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 on the agenda.” 29 Del. C. § 10004(e)(5).

Analysis

Your contention that the pole building bid had been awarded at the January 15, 2008 meeting was mistaken. The minutes of that meeting make clear that the District neither discussed nor voted on the pole building. Moreover, your claim that the District failed to give a reason for the late addition of the pole building to the agenda for the February 12 meeting is incorrect; the agenda posted on February 7 did provide a brief reason for the delay.

We have previously determined that FOIA “‘requires only a reason, not a specific detailed factual basis, why the seven-day requirement could not be met.’” Att’y Gen. Op . 02-IB22, at 6 (September 13, 2002) (quoting Att’y Gen. Op . 096-IB15 (May 10, 1996)). In this case, the District gave as its reason the necessity for Board action that arose after the original posting, which sufficiently explains the delay. We are satisfied that the District did not act in deliberate disregard of the seven day posting requirement.

We have stated in past opinions that we would also look for a reason why the delayed agenda item could not have been postponed in order to give the public full notice. Att’y Gen. Op . 05-IB15, at 6 (June 20, 2005). While it is not clear from the record that the pole building contract needed to be approved on February 12, and not at a later meeting after full notice, the pole building contract was, in fact, re-noticed for the March 4, 2008 meeting, at which the contract was awarded. In other words, the District has remedied any defect in FOIA compliance.

Conclusion

For the reasons stated herein, it is determined that the Woodbridge School District did not award the pole building contract without public notice, in violation of FOIA, nor did the District violate FOIA by failing to state the reason for the delay in posting the pole building bid results to the agenda for the February 12, 2008 board meeting. To the extent that FOIA may require that a public body postpone an agenda item that can be deferred, that was done in this case by re-noticing the pole building contract for the March 4, 2008 meeting, and no further remediation is required.

Very truly yours,

/s/ Judy Oken Hodas

Judy Oken Hodas

Deputy Attorney General

APPROVED

/s/ Jennifer D. Oliva

Jennifer D. Oliva

Deputy State Solicitor

cc: Kevin E. Carson, Ed.D., Superintendant