Does a town committee's special meeting still need public notice if the town also mails personal invitations to an affected group, like Main Street business owners?

Official title

96-IB22: FOIA-Town Council of Millsboro

Plain-English summary

A Millsboro resident complained broadly that the town council wasn't following FOIA, Delaware law on town charters, or the town's own charter. The Attorney General explained upfront that its FOIA authority doesn't reach charter compliance or alleged official malfeasance like conflicts of interest, and focused only on the two specific FOIA complaints: that meetings of the town's Economic Development Committee weren't open to the public, and that the only notice of a special meeting on the "Main Street Enhancement Program" was invitations mailed to 37 Main Street businesses.

After reviewing a year's worth of committee meeting records and the special meeting's documentation, the Attorney General found no violation. The Economic Development Committee had met monthly with a properly and timely posted agenda each time, and minutes were kept. The Main Street special meeting had likewise been properly noticed to the public in the ordinary way; the town's additional step of mailing and calling Main Street business owners to encourage their attendance was extra outreach on top of the required public notice, not a substitute for it, so it didn't undermine the town's compliance.

Currency note

This opinion was issued in 1996. 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: Can a FOIA complaint be used to argue that a town council violated its own charter?
A: No. The opinion held that charter compliance and related claims of official malfeasance fall outside the Attorney General's jurisdiction under the Freedom of Information Act, so those allegations weren't addressed.

Q: If a town mails invitations to a specific group before a special meeting, does that mean the meeting wasn't really open to the public?
A: Not under this opinion. The AG found the special meeting on Main Street improvements was properly and timely noticed to the general public, and that the additional mailed invitations to Main Street businesses were supplemental outreach, not a replacement for the required public notice.

Q: Does a town committee that meets regularly still have to post an agenda every time?
A: Yes, and the opinion found Millsboro's Economic Development Committee did exactly that, posting a properly timed agenda and preparing minutes for each of its monthly meetings.

Background and statutory framework

The complaint targeted two things: the Economic Development Committee's monthly meetings (established by the town council in February 1995 to work with the local chamber of commerce) and a special meeting on the Main Street Enhancement Program, first discussed at a July 1995 regular council meeting and scheduled for October 16, 1995. Applying 29 Del. C. Section 10004(e)(2) and (3)'s notice requirements and Section 10004(e)(4)'s posting rules, the AG reviewed the documentary record, agendas, minutes, and notices, produced by the town's attorney and found each committee meeting and the special meeting were properly and timely noticed and memorialized in minutes. The opinion applied 29 Del. C. Section 10002(a)'s definition of "public body" to confirm the committee qualified as one subject to the Act, while declining under the Attorney General's limited authority in 29 Del. C. Section 10005(e) to reach the separate town-charter allegations.

Citations and references

Statutes:

• 29 Del. C. Section 10002(a), definition of "public body" covering town committees
• 29 Del. C. Section 10004, open meetings requirements generally
• 29 Del. C. Section 10004(e)(2), seven-day public notice and agenda requirements
• 29 Del. C. Section 10004(e)(3), notice requirements for special or rescheduled meetings
• 29 Del. C. Section 10004(e)(4), posting-location requirements for public notice
• 29 Del. C. Section 10005(e), scope of the Attorney General's FOIA investigation and enforcement authority

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/06/18/96-ib22-foia-town-council-of-millsboro/

Original opinion text

Civil Division – New Castle County

June 18, 1996

Del. Op. Atty. Gen. 96-IB22 (Del.A.G.), 1996 WL 345844

( determining that AG lacked jurisdiction to determine whether town council violated town charter, and finding that town council did not violate the open meeting requirements of FOIA where special meeting was properly noticed and memorialized in minutes in accordance with FOIA )

Ms. Elise Altergott

220 Church Street

P.O. Box 1301

Millsboro, DE 1966-5301

Re: Freedom of Information Act Complaint

against Town Council of Millsboro

Dear Ms. Altergott:

Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred.

On May 20, 1996, we received your complaint, as set forth in your letter of May 15, 1996. By letter dated May 24, 1996, we asked the Town Council of Millsboro to respond to your allegations of FOIA violations. By letter dated June 3, 1996, the attorney for the Town responded, providing us with documents, including minutes of regular town council meetings, minutes of special meetings of the Economic Development Committee and the Main Street Enhancement Project, and the agenda posted to give the public notice of those meetings.

Your complaint states you do not believe that “the Town Council of Millsboro is meeting the Freedom of Information Act, following Delaware law relating to Town Charters, nor meeting the guidelines of the Charter of the Town of Millsboro.” With regard to any alleged charter violations, inadequacies in the town charter, or alleged malfeasance of town officials (such as conflicts of interest), the Attorney General does not have jurisdiction over these matters under FOIA, and therefore we do not address them in this written determination.

The two FOIA violations you do allege are: (1) the special meetings of the Millsboro Economic Development Committee “were not open to the Citizens or public”; and (2) the only notice given of a special meeting regarding the Main Street Enhancement Program were invitations “mailed to 37 businesses on Main Street only.” We address these two issues in our opinion below.

The Pertinent Statutes

29 Del. C. Section 10002(a):

“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division of the State, including but not limited to, any board, bureau, commission, department. agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.

29 Del. C. Section 10004. Open meetings.

(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.

. . .

(e)(2) All 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. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the 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.

(e)(3) All public bodies shall give public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

. . .

(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where the meetings of the public body are regularly held, and making a reasonable number of such notices available.

Opinion

The documents produced by the attorney for the Town in response to your complaint show that the Town Council appointed an Economic Development Committee at the regular council meeting on February 6, 1995 to work with the local chamber of commerce on the future economic development of Millsboro. At the June 5, 1995 regular council meeting, the Town Council directed that committee to set a date and time for meeting.

Over the course of July 1995-June 1996, that committee met once a month (with the exception of January 1996). The documents produced by the attorney for the Town show that each meeting was properly and timely noticed to the public in accordance with FOIA, and that the committee held public meetings following the publication of each month’s agenda. Further, minutes of those meetings were prepared. The documents, therefore, support the conclusion that the requirements of FOIA were met with regard to those meetings, and that the public had the opportunity to observe the performance of public officials and to monitor their decisions.

The documents submitted by the Town’s attorney in response to your complaint show that at the July 3, 1995 regular council meeting there was discussion of a plan to beautify Main Street with plantings. At the regular council meeting on October 2, 1995, the Council decided to “arrange a meeting if possible with the downtown property owners on the same evening as the audit workshop, October 16, 1995” to discuss the so-called Main Street Enhancement Program. The documents show that special meeting was properly and timely noticed to the public in accordance with FOIA. In addition to posting the agenda for the special meeting, the Town also extended invitations by mail and telephone to the owners and operators of businesses on Main Street to ensure their participation and input. Minutes were prepared of the special meeting held on October 16, 1996. Again, the documents support the conclusion that the requirements of FOIA were met with regard to this special meeting, and that the public had the opportunity to observe the performance of public officials and to monitor their decisions.

Based on our review of your complaint, and the response of the attorney for the Town and the documents produced, we conclude that there has not been a violation of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: Tempe Brownwell Steen, Esquire

Elizabeth A. Bacon, Opinion Administrator