Can a county council use generic boilerplate language on every meeting agenda to reserve the right to go into executive session on any topic?

Official title

13-IB02 05/01/13 FOIA Opinion Letter to Mr. Daniel J. Kramer re: FOIA Complaint Against Sussex County Council

Plain-English summary

A resident asked the Delaware Attorney General whether Sussex County Council's standard meeting-agenda language violated the state's open meetings law. On every agenda, the Council listed a generic "Executive Session" item citing all four exemptions it might invoke (job applicants' qualifications, personnel, pending or potential litigation, and land acquisition) plus a standing "Possible Action on Executive Session Items" line, regardless of whether the Council actually planned to use any of them at that particular meeting. For the two meetings at issue, the Council had no real intention of holding an executive session or acting on anything from one, and it voted to delete the boilerplate language from both agendas before the meetings got underway.

The AG found this specific boilerplate practice troubling because the language made representations to the public, that the Council intended to meet in closed session and might vote afterward, that weren't true when the agendas were published. But because the Council never actually relied on the boilerplate to hold a closed session or take undisclosed action, and no one showed they were misled to their detriment, the AG concluded the practice didn't violate FOIA on these particular facts. The AG separately warned that the boilerplate language could not be used to sidestep FOIA's rules for adding new items to an already-posted agenda.

Currency note

This opinion was issued in 2013. 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

Is it a FOIA violation for a public body to list every possible executive-session exemption on its agenda "just in case"?

Not automatically, according to this opinion. On these facts, the Council never actually used the boilerplate language to hold a closed session or take unannounced action, so the AG found no FOIA violation, while still warning that the practice was misleading.

Why did the AG call the boilerplate language a problem if it wasn't a violation?

Because the agenda told the public the Council intended to convene in executive session and might vote on closed-session matters, when neither was actually true at the time the agenda was posted. The opinion treated agenda disclosures as public representations that should be accurate when made.

Can boilerplate agenda language be used to add new topics after an agenda is posted?

No. The opinion held that generic catchall language cannot substitute for FOIA's agenda-amendment requirements: a public body adding a new item still must publish an amended agenda at least 6 hours in advance, explain the delay, and, if fewer than 7 days remain before the meeting, show the item arose unexpectedly and needed immediate attention.

Background and statutory framework

FOIA, 29 Del. C. §§ 10001-10006, requires meeting agendas to include "a general statement of the major issues expected to be discussed," and a statement of intent to hold an executive session with "the specific ground or grounds therefor," 29 Del. C. § 10002(a). The purpose of any executive session must be set forth in the agenda and limited to the grounds listed in 29 Del. C. § 10004(b), the exemption provision the Council's boilerplate cited wholesale. The opinion treated these agenda disclosures as representations to the public that "should be true and accurate when made," reasoning that citizens rely on them to decide whether to attend a meeting.

Separately, FOIA allows public bodies to amend an already-posted agenda to add new items, but only if the amended agenda is published at least 6 hours in advance and explains the reason for the delay, 29 Del. C. § 10004(e)(5), with an additional showing of unexpected urgency required when the amendment comes within 7 days of the meeting. The opinion found the Council's Form Language inconsistent with this framework because it functioned as a standing, undated placeholder rather than a genuine, timely amendment, and warned that any vote taken on an item improperly added to an agenda is subject to challenge and invalidation, FOIA § 10005(a).

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10006 (Delaware's Freedom of Information Act)
• 29 Del. C. § 10004(b) (executive session exemptions: personnel, litigation, land acquisition, job applicants)
• 29 Del. C. § 10002(a) (agenda must disclose major issues and any intent to hold an executive session)
• 29 Del. C. § 10004(c) (purpose of executive session must be set forth in the agenda)
• 29 Del. C. § 10004(e)(5) (6-hour notice and explanation required for agenda amendments)
• FOIA § 10005(a) (invalidation of actions taken in violation of the open meeting law)

Source

• Landing page: https://attorneygeneral.delaware.gov/2013/05/01/13-ib02-050113-foia-opinion-letter-to-mr-daniel-j-kramer-re-foia-complaint-against-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 13-IB02

May 1, 2013

VIA EMAIL AND REGULAR MAIL

Mr. Daniel J. Kramer

8041 Scotts Store Rd.

Greenwood, DE  19950

[email protected]

Re:    FOIA COMPLAINT AGAINST SUSSEX COUNTY COUNCIL

Dear Mr. Kramer:

We hereby respond to your petition, received May 23, 2012, wherein you ask this Office to determine whether certain language used by the Sussex County Council (the “ Council ”) in its meeting agendas is permissible under the “open meeting” and related provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“ FOIA ”). 1 Specifically, the petition questions whether the Council is permitted to include in its agendas certain form catchall language that is designed to permit the Council to discuss and take action on topics that arise after an agenda is filed.  As discussed below, we find the Council’s agenda practices troubling, but we are not convinced, based on the unique facts presented in this case, that the Council’s use of such language violated FOIA.

I.    BACKGROUND

The facts here are straight forward and undisputed.  The Council admits that it has a long-standing practice of including in its public meeting agendas a generic “statement of intent” to convene in executive session (the “ Generic Statement ”).  The Generic Statement includes references to four open meeting exemptions (the “ Exemptions ”) that the Council frequently invokes to discuss public business in closed session.  It reads:

Executive Session — Job Applicants’ Qualifications, Personnel, Pending/Potential Litigation, and Land Acquisition pursuant to 29 Del. C. § 10004(b).

The Council also has a long-standing practice of including in its agendas the following recurring “action” item:  “Possible Action on Executive Session Items” (the “ Recurring Agenda Item ,” and together with the Generic Statement, the “ Form Language ”).  The Council admits that the Form Language is used to ensure that topics brought to the attention of the Council after a particular agenda is posted, but before the subject meeting, can be discussed and acted upon in a timely manner, rather than being put off to a later Council meeting.

The petition focuses on two specific instances where the Form Language was used — namely, in the agendas for the Council meetings held on April 3, 2012 and May 8, 2012 (the “ Meetings ”).  At the time the Meeting agendas were published, the Council, contrary to the Generic Statement, had no specific intention of holding an executive session based on any particular Exemption.  Nor did the Council have a reasonable expectation that it would need to take action on matters discussed in executive session, as suggested by the Recurring Agenda Item.  Because no new issues arose after the Council posted the Meeting agendas, the Council, at the beginning of both Meetings, voted to and did amend the agendas by deleting all references to the Form Language.  The Council did not convene in executive session, or take action on any items discussed in executive session, at either Meeting.

II.    DISCUSSION

The petition asserts that the Council’s agenda practices are improper under FOIA.  Though we do not find specific FOIA violations relating to the Meetings at issue, we agree that the Council’s agenda practices are problematic.  The Form Language in the Meeting agendas contains incorrect and potentially misleading information about the conduct of the Council’s public meetings.  The Form Language also is inconsistent with FOIA’s agenda amendment requirements.  To avoid potential FOIA violations and other problems in the future, we urge the Council to revise its agenda practices in accordance with our recommendations below.

A. The Form Language Contains Incorrect And Potentially Misleading Disclosures.

FOIA expressly requires public bodies to publish, in advance of a public meeting, a meeting agenda identifying important matters that a public body expects to discuss or take action on at a public meeting.  See 29 Del. C. § 10002(a) (requiring that agendas include “a general statement of the major issues expected to be discussed at a public meeting”).  FOIA further requires public bodies to disclose in their agendas when they intend to convene in executive session and the statutory basis or bases for discussing public business in closed session.  See id. (requiring that agendas include “a statement of intent to hold an executive session and the specific ground or grounds therefor”); see also ; 29 Del. C. § 10004(c) (“The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in [FOIA § 10004(b)].”).

Agenda disclosures are important.  Members of the public are entitled to and routinely do make decisions based on agenda disclosures.  Indeed, that is the primary purpose of an agenda.  As we recently observed:

The . . . agenda disclosure requirements are necessary to ensure that the public receives adequate advance notice of all important matters that will be discussed and possibly voted upon at a public meeting.  Without adequate disclosure, members of the public are unable to make informed decisions as to whether (or not) to attend particular public meetings to observe and monitor a public body’s performance on matters of interest to them.

Att’y Gen. Op. 13-IB01 (March 26, 2013).  We think the agenda disclosures required by FOIA are in the nature of public representations.  They should be true and accurate when made.

The Meeting agendas and the Form Language therein contained the following representations:

• that the Council intended to convene in executive session at the Meetings;

• that the Council intended to discuss matters covered by all four Exemptions while in executive session; and

• that the Council anticipated discussing and possibly voting on one or more of the matters discussed in executive session upon returning to open session.

None of the foregoing representations was true or accurate when the Meeting agendas were published.

The Council is responsible for the content of its meeting agendas.  Had a citizen reasonably relied on the Meeting agendas to his or her detriment, we likely would have found that the Council’s use of the Form Language violated the spirit if not the letter of FOIA.  The record in this case, however, contains no such evidence.  In the future, we urge the Council to take reasonable steps to ensure that agenda disclosures and other representations made to the public are true and accurate when made.

B. The Council Cannot Circumvent FOIA’s Agenda Amendment Requirements.

The Form Language is inconsistent with, and cannot be used to circumvent, FOIA’s agenda amendment requirements.  As we recently observed, public bodies are permitted under FOIA to amend timely posted meeting agendas to include new action or discussion items, but only when the following conditions are met:

First, public bodies must publish an amended agenda describing adequately the new items “at least 6 hours in advance of the meeting.”  29 Del. C. § 10004(e)(5).  Second, public bodies must include in the amended agenda a brief statement describing the reasons for the delay in providing notice of any new agenda items.  See id. Finally, [when] an amended agenda is filed less than 7 days in advance of the meeting, . . . public bodies [must] make an additional showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention. 2

Att’y Gen. Op. 13-IB01 (March 26, 2013).

The Council’s mere inclusion of the Form Language in the Meeting agendas did not, without more, run afoul of FOIA’s agenda amendment requirements.  The Council did not have occasion to rely on the Form Language in connection with the two Meetings at issue.  We note that the Council likely would have violated FOIA had it addressed, at one or both of the Meetings, a new issue without complying fully with FOIA’s agenda amendment requirements.  See Att’y Gen. Op. 13-IB01 (finding FOIA violations where school board’s amended agenda did not state reasons why new items were omitted from the original agenda).  That situation is not presented here.

We recommend that the Council comply fully with all of FOIA’s agenda amendment requirements going forward.  We note that the Council must adhere to FOIA’s agenda amendment provisions in order to address, validly , a topic that arises after an agenda is filed but before the start of the subject Council meeting.  Any vote or other action taken with respect to an agenda item improperly added to a meeting agenda would be subject to challenge and invalidation under FOIA § 10005(a) (“Any action taken at a meeting in violation of [FOIA] may be voidable by the Court of Chancery.”).

III.    CONCLUSION

For the foregoing reasons, we conclude that the Council’s agenda practices, while not violative of FOIA on the facts presented in this case, are problematic.  We suggest that the Council (a) to take steps to ensure that future agenda disclosures are true and accurate when made and (b) comply fully with FOIA’s agenda amendment requirements going forward.

Very truly yours,

Jason W. Staib

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:    J. Everett Moore, Jr., Esquire (via email)

FOIA Opinion Distribution List (via email)

FOOTNOTES

1 The Council is a “public body” within the meaning of FOIA.  See 29 Del. C. § 10002(h).  As such, the Council is subject to the “open meeting” requirements of FOIA.  See 29 Del. C. § 10004.

2 FOIA contains a separate provision dealing with agenda amendments for issues that arise after a public meeting is called to order.  See 29 Del. C. § 10004(e)(2) (“[T]he agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.”).  That provision is not at issue here.