If a school board's amended agenda skips a required explanation, does re-voting on the same item at a later meeting fix the FOIA violation?

Official title

04-IB06: RE: F.O.I.A. Complaint Against Woodbridge School District

Plain-English summary

A resident complained that Woodbridge School District added "School Board Election Date" to its meeting agenda without giving the standard seven days' notice, and without explaining in the amended notice why that notice couldn't be given, something FOIA specifically requires when an agenda item is added late. The district didn't dispute the mistake. What it did do, without waiting to be told, was re-notice the same election-date issue properly for a meeting three weeks later and have the board formally vote again to reaffirm its original decision (setting the election for May 8, 2004). The AG found the initial defect was a real FOIA violation, but concluded no remedy was needed since the district had already cured it by doing the whole process over correctly and getting the same outcome through a properly noticed vote. The AG specifically praised the district for fixing the problem on its own initiative rather than waiting for an order to do so.

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

Q: What has to be included when a public body adds an item to its agenda without giving seven days' notice?
A: A brief explanation of why the standard notice period couldn't be met, according to this opinion; leaving that explanation out is itself a FOIA violation even if the underlying reason for the delay was legitimate.

Q: If a board's agenda amendment was defective, can voting on the same issue again later fix the problem?
A: Yes, according to this opinion, when the public body re-notices the same issue properly and holds a new vote reaffirming its decision, the AG found that cures the earlier defect and no further remedy is needed.

Q: Does self-correcting a FOIA mistake before being told to affect how the Attorney General treats it?
A: It can favorably, based on this opinion. The AG specifically commended the district for proactively fixing its own error, contrasting that with situations where a public body only corrects course after being ordered to.

Background and statutory framework

The complaint concerned Woodbridge School District's January 9, 2004 amended agenda, which added a school board election date item for a January 13, 2004 meeting without the explanation FOIA requires for late additions. Applying 29 Del. C. § 10004(e)(2) and § 10004(e)(5), and its own line of prior opinions, including Att'y Gen. Op. 94-IO37, Att'y Gen. Op. 98-IB05, Att'y Gen. Op. 96-IB15, and Att'y Gen. Op. 97-IB18, on the requirement that a shortened-notice explanation be included, the AG found a technical violation but no need for remediation because the district re-noticed and reaffirmed the same election-date decision at a properly noticed meeting three weeks later.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), standard seven-day meeting and agenda notice requirement
• 29 Del. C. § 10004(e)(5), six-hour agenda amendment procedure with a required delay explanation

Cases:

• Att'y Gen. Op. 94-IO37 (July 26, 1994), only a reason, not a detailed factual basis, is required for shortened notice
• Att'y Gen. Op. 98-IB05 (July 6, 1998), a FOIA violation is found where notice gives no explanation at all for skipping the seven-day period
• Att'y Gen. Op. 96-IB15 (May 10, 1996), same rule on required notice explanations
• Att'y Gen. Op. 97-IB18 (Sept. 2, 1997), same rule on required notice explanations

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/02/23/04-ib06-re-f-o-i-a-complaint-against-woodbridge-school-district/
• Original PDF: not linked from landing page

Original opinion text

February 23, 2004

Kent County – Civil Division (739-7641)

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

RE: Freedom of Information Act Complaint Against Woodbridge School District

Dear Mr. Kramer:

On January 23, 2004, we received your letter alleging that the Woodbridge School District (Athe School District@) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Chapter 100 (AFOIA@), by posting an amended agenda on January 9, 2003 for a regular meeting held on January 13, 2004 to include a new item for public discussion: ASchool Board Election Date.@

By letter dated January 27, 2004, we asked the School District to respond to your complaint within ten days. We received the School District=s initial response on February 3, 2004. The School District acknowledges that it did not explain, in the amended agenda posted on January 9, 2004, the reasons for the delay as required by FOIA. According to the School District, it re-noticed the issue of the school board election date for a regular meeting on February 3, 2004 at least seven days in advance as required by FOIA.

On February 12, 2004, the School District provided us with a copy of the agenda for the February 3, 2004 regular meeting and the draft minutes of that meeting. The agenda was posted on January 27, 2004, and listed for public discussion: AReaffirmation of School Board Election Date.@ The draft minutes show that the Superintendent recommended May 8, 2004 as the school board election date and that the board voted unanimously to reaffirm its vote on January 13, 2004 to set the election date for May 8, 2004. On February 18, 2004, the School District informed us that the board approved the draft minutes of the February 3, 2004 meeting previously provided to us at its regular meeting on February 17, 2004.

Relevant Statutes

FOIA provides that a public body shall give notice to the public and post an agenda Aat least 7 days in advance thereof.@ 29 Del. C. ' 10004(e)(2). AWhen an agenda is not available as of the time of the initial posting of the public meeting 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 in the agenda.@ Id. ' 10004(e)(5).

Legal Analysis

FOIA Arequires only a reason, not a specific detailed factual basis, why the seven-day [notice] requirement could not be met.@ Att=y Gen. Op. 94-IO37 (July 26, 1994). ABut we have consistently found a FOIA violation where the notice failed A>to provide any explanation whatsoever concerning the reasons why the normal seven day notice requirement could not be given.=@ Att=y Gen. Op. 98-IB05 (July 6, 1998) (quoting Att=y Gen. Op. 94-IO37 (July 26, 1994) and citing Att=y Gen. Op. 96-IB15 (May 10, 1996) and Att=y Gen. Op. 97-IB18 (Sept. 2, 1997)).

The School District does not dispute that the amended agenda for the January 13, 2004 regular meeting did not state an explanation notice could not have been given at least seven days in advance. We find therefore that a technical violation of FOIA occurred. No remediation is necessary, however, because the School District cured the violation by re-noticing the school board election date issue in the agenda for its meeting on February 3, 2004 in compliance with FOIA, and voting to re-affirm its earlier decision to schedule the school board election date for May 8, 2004.

We commend the School District for taking steps to cure a FOIA violation before being instructed by this Office to do so. We recognize that mistakes and errors will occur, and appreciate the School District=s recognition of its obligations under FOIA and its responsible action in addressing this matter promptly.

Conclusion

For the foregoing reasons, we determine that the School District violated the open meeting requirements of FOIA by not providing an explanation in the amended agenda for the January 13, 2004 meeting why seven days advance notice to the public could not be given. We do not require remediation because the School District re-affirmed its decision to set the school board election date at a meeting three weeks later in compliance with FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

James B. Griffin, Esquire

Phillip G. Johnson

Opinion Coordinator