Does a town's special-meeting notice violate FOIA if it gives less than seven days' notice without explaining why?

Official title

01-IB02: FOIA Complaint Against Town of Odessa

Plain-English summary

A resident who had recently won a Superior Court case against the Town of Odessa complained that the town called a special council meeting on December 23, 2000 without giving proper notice. The town explained it had a real time crunch: it didn't receive the court's decision until after its regular December 4 meeting, an appeal to the Delaware Supreme Court had to be filed within thirty days, and the town's next regularly scheduled meeting wasn't until January 4, 2001, too late to comfortably decide whether to appeal. So the council called a special meeting to get legal advice from the town solicitor about whether to appeal. The AG found that the town posted the special-meeting notice at least 24 hours in advance, but the notice omitted the required explanation for using less than seven days' notice. But FOIA doesn't just require quick notice for a special meeting, it requires the notice to explain why the normal seven-day notice couldn't be given, and Odessa's notice left that explanation out. That was a real violation. The town, however, fixed the problem on its own: at its next regular meeting on January 4, 2001, it formally ratified the decision to appeal, effectively redoing the substance of the earlier vote in a properly noticed public session. The AG found this voluntary ratification cured the violation, and simply reminded the town to include the required explanation in any future special meeting notices.

Currency note

This opinion was issued in 2001. 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 a town's stated urgency excuse leaving the reason out of a short-notice meeting notice?
A: No. The notice still had to explain why the normal seven-day notice could not be given, and Odessa's notice did not include that explanation.

Q: Can a town fix a defective special-meeting notice after the fact?
A: Yes, based on this opinion. The AG found the town cured its violation by ratifying the decision at its next regular, properly noticed meeting, rather than needing any further AG-ordered remedy.

Q: What did the notice need to explain?
A: Under 29 Del. C. § 10004(e)(3), a special-meeting notice had to explain why seven days' notice could not be given. The December 23 notice did not do so.

Q: What should a public body do differently to avoid this kind of violation in the future?
A: According to this opinion, the fix is straightforward: whenever posting a special meeting notice on less than seven days' notice, the notice must include an explanation of why the shorter notice was necessary.

Background and statutory framework

The complaint concerned Odessa's December 23, 2000 special meeting, called to obtain legal advice on whether to appeal a Superior Court decision within the thirty-day appeal deadline. Applying 29 Del. C. § 10004(e)(3)'s rule allowing 24 hours' notice for a special meeting but requiring the notice to explain why the normal seven-day notice couldn't be given, the AG found the town's notice was timely but omitted the required explanation, a genuine FOIA violation. Because the town subsequently ratified its decision to appeal at its next regularly scheduled, properly noticed meeting on January 4, 2001, the AG found the violation cured through the town's own voluntary action and did not order any further remedy, while directing the town to include the required explanation in future special meeting notices.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(3), 24-hour notice rule for special meetings, with a required explanation for the shortened notice

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/01/30/01-ib02-foia-complaint-against-town-of-odessa/

Original opinion text

January 30, 2001

Civil Division-Kent County

Ms. Kathleen H. Harvey

P.O. Box 318

Odessa, DE 19730

Re: Freedom of Information Act Complaint Against Town of Odessa

Dear Ms. Harvey:

Our Office received your Freedom of Information Act (“FOIA”) complaint on December 29, 2000. You allege that the Town of Odessa (“the Town”) violated the open meeting requirements of FOIA by failing to give timely notice of a special meeting of the Town Council on December 23, 2000.

By letter dated January 4, 2001, we asked the Town to respond to your complaint within ten days. We received the Town’s response on January 15, 2001.

According to the Town, it did not receive a copy of the Superior Court’s November 29, 2000 decision (in a case in which you were the plaintiff) until after the regularly scheduled meeting on December 4, 2000. The Town then asked its counsel to review the decision to advise the Town whether to appeal to the Supreme Court. An appeal to the Supreme Court must be filed within thirty days of the decision. The next regularly scheduled meeting of the Town Council was January 4, 2001. According to the Town, the Council noticed a special meeting of the Council for December 23, 2000 in order to receive legal advice from the Town Solicitor before deciding whether to appeal.

FOIA requires all public bodies to give at least seven days’ notice of their meetings, but there need only be 24 hours’ notice for a “special” meeting. A special meeting is defined as “one held less than 7 days after the scheduling decision is made.” 29 Del. C. § 10004(e)(3). The public notice of a special meeting “shall include an explanation as to why [seven days’ notice] could not be given.” Id.

The Town posted the notice for the December 23, 2000 special meeting at least 24 hours in advance. The notice, however, did not include an explanation why the Town could not give seven days’ notice. At its regularly scheduled meeting on January 4, 2001, the Town ratified its decision to appeal to the Supreme Court and voluntarily cured its violation of the open meeting law. We believe the Town now understands its obligation to post notices for special meetings with an explanation why seven days’ notice could not be given.

Conclusion

For the foregoing reasons, we find that the Town violated the open meeting requirements of FOIA by not including, in the notice of the December 23, 2000 special meeting, an explanation why it could not give seven days’ notice. We find that the Town cured that defect by ratifying the action taken on December 23 at the meeting of the Town Council on January 4, 2001. In the future, the Town is to comply with the open meeting laws and include the required explanation in any notice of a special meeting.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

Clifford B. Hearn, Jr. Esquire

Phillip G. Johnson, Opinion Coordinator