Does a Delaware county council have to explain why it amended a meeting agenda to name a specific employee in a personnel matter?

Official title

05-IB09: RE: F.O.I.A. Complaint Against New Castle County Council

Plain-English summary

A watchdog group complained that New Castle County Council violated FOIA's open meeting requirements by holding a special meeting on January 25, 2005 without proper notice. Several council members had pushed over a weekend for an urgent meeting to discuss the County Auditor's position, and the council posted notice and an agenda the following Monday for a meeting the next evening, listing "Discussion of Confidential Personnel Matter" as the topic and explaining the rush was due to recent developments since an audit committee meeting days earlier. Hours before the meeting, the council posted a revised agenda that named the County Auditor specifically, without stating a reason for that change. The AG found no violation on either point. The original notice's brief explanation about recent developments was enough to justify the shortened, roughly 32-hour notice period; FOIA only requires a reason, not a detailed account. And because the original "confidential personnel matter" item already met FOIA's minimum agenda requirements, and a public body isn't required to name an individual involved in an authorized personnel matter, the later revision just clarified an already-adequate item rather than introducing new business that would need its own explanation for the late change.

Currency note

This opinion was issued in 2005. 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: How detailed does a Delaware public body's explanation have to be to justify calling a rushed special meeting?
A: According to this opinion, FOIA requires only a reason, not a specific, detailed factual basis, for why the normal seven-day notice couldn't be met.

Q: Does a Delaware public body have to explain every change it makes to a meeting agenda?
A: Not always, based on this opinion. An explanation is required when a truly new matter is added late, but not when the change only clarifies a topic that already satisfied FOIA's general-statement requirement for agenda items.

Q: Does FOIA require a public body to name a specific employee when discussing a personnel matter in a meeting agenda?
A: No, according to this opinion, when the personnel matter is one authorized for executive session, listing it generally (such as "confidential personnel matter") is enough; the body doesn't have to identify the individual involved.

Background and statutory framework

The complaint concerned a January 25, 2005 New Castle County Council special meeting about the County Auditor, noticed roughly 32 hours in advance with a same-day agenda revision. Applying the open-meeting requirement of 29 Del. C. §10004(a), the regular and special meeting notice provisions of §10004(e)(2), the six-hour agenda amendment procedure at §10004(e)(5), and the "agenda" definition at §10002(f), and drawing on its own opinions on what qualifies as an adequate special-meeting explanation (Att'y Gen. Op. 94-IO37, Att'y Gen. Op. 03-IB19), on late agenda amendments for matters that arise suddenly (Att'y Gen. Op. 03-IB22, Att'y Gen. Op. 02-IB22), and on not needing to name individuals in personnel-matter agenda items (Att'y Gen. Op. 99-IB03), the AG found the council fully complied with FOIA.

Citations and references

Statutes:

• 29 Del. C. §10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. §10004(e)(2), regular meetings require seven days' notice; special meetings require at least 24 hours' notice with an explanation for the shortened timeline
• 29 Del. C. §10004(e)(5), an agenda not ready at initial posting may be amended up to six hours before the meeting, with reasons for the delay stated
• 29 Del. C. §10002(f), defines "agenda" as a general statement of the major issues expected to be discussed at a meeting

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. 03-IB19 (Aug. 8, 2003), a stated need to minimize delays satisfied the special-meeting notice requirement
• Att'y Gen. Op. 03-IB22 (Oct. 6, 2002), FOIA allows amending an agenda up to six hours before a meeting for matters that arise suddenly
• Att'y Gen. Op. 02-IB22 (Sept. 13, 2002), an amended agenda adding ethics issues raised days earlier did not violate FOIA
• Att'y Gen. Op. 99-IB03 (Apr. 28, 1999), FOIA does not require naming an individual in an agenda item for an authorized personnel matter

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/04/11/05-ib09-re-f-o-i-a-complaint-against-new-castle-county-council/
• Original PDF: not linked from landing page

Original opinion text

April 11, 2005

Civil Division-Kent County (739-7641)

05-IB09

Mr. John Flaherty

Common Cause of Delaware

1304 N. Rodney Street, 3rd Floor

Wilmington, DE 19806

Re:   Freedom of Information Act Complaint

Against New Castle County Council

Dear Mr. Flaherty:

Our Office received your Freedom of Information Act (“FOIA”) complaint on January 31,

2005 alleging that the New Castle County Council (“the Council”) violated the open meeting

requirements of FOIA by holding a special meeting on January 25, 2005 without the required notice

to the public.

By letter dated February 1, 2005, we asked the Council to respond to your complaint within

ten days. We granted the Council’s request for a short extension of time, and received the Council’s

response on February 16, 2005.

According to the Council, a regular meeting of the Council’s Executive Committee was

scheduled for January 25, 2005 at 7:00 p.m. The notice and agenda for that meeting were posted

seven days in advance on January 18, 2005.

According to the Council, [s]everal Council members approached the President on Friday,

January 21 and over the weekend, on January 22 and 23, to request the immediate scheduling of a

special meeting to consider the Auditor’s position.” On Monday, January 24, 2005 at 11:00 a.m.,

the Council posted a notice and agenda for a special meeting to be held at 7:00 p.m. on Tuesday,

January 25, 2005. The agenda noted that it “was not posted seven (7) days in advance of the

scheduled meeting as a result of recent developments since the Audit Committee meeting of January

20, 2005. The agenda listed for discussion: “1. Call to order 2. Discussion of Confidential Personnel

Matter 3. Other”.

The first agenda for the special meeting on January 25, 2005 was posted more than twentyfour

hours in advance of the special meeting. On January 25, 2005, the Council posted a revised

agenda for the special meeting at 12 noon, more than six hours in advance of the meeting. The only

change to the agenda was to revise the second line item to read: “Discussion of Confidential

Personnel Matter (County Auditor)”. According to the Council, this change was made “to clarify

that the confidential personnel matter to be discussed involved the County Auditor.”

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those closed” for executive session as authorized by statute. 29 Del. C. §10004(a).

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, . . . .” Id. §10004(e)(2).

FOIA requires a public body to give notice of any special meeting “as soon as reasonably

possible, but in any event no later than 24 hours before such meeting.” 29 Del. C. §10004(e)(2).

A special meeting is defined “as one to be held less than 7 days after the scheduling decision is

made.” Id. The notice of a special meeting “shall include an explanation as to why the [normal 7

days notice] could not be given.” Id.

“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 in the agenda.” 29 Del. C. §10004(e)(5).

Legal Authority

A. Notice of Special Meeting on January 25, 2005

FOIA requires the notice of a special meeting to “include an explanation as to why [7 days

notice] could not be given.” 29 Del. C. § 10004(e)(2). 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. 94-IO37 (July 26, 1994).

For example, in Att’y Gen. Op. 03-IB19 (Aug. 8, 2003), the town held a special meeting

to discuss road improvements. The notice stated the town had to meet with less than seven days’

notice “to minimize any further delays in the work.” We determined that the town’s reason, as

stated in the agenda, satisfied FOIA’s requirement for a special meeting.

The notice for the January 25, 2005 special meeting of the Council stated the reason why the

Council felt it had to meet with less than seven days notice: “as a result of recent developments since

the Audit Committee meeting of January 20, 2005″. We determine that this explanation satisfied

the requirement of FOIA for noticing a special meeting.

B. Revised Agenda for the January 25, 2005 Special Meeting

“We recognize that the business of government does not stop seven days before a public

meeting, but FOIA provides flexibility for a public body to amend the agenda up to six hours prior

to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.” Att’y

Gen. Op. 03-IB22 (Oct. 6, 2002) (school district only learned of the need for a construction contract

change order the morning of the scheduled meeting). See Att’y Gen. Op. 02-IB22 (Sept. 13, 2002)

(the council’s executive committee did not violate FOIA when it posted an amended agenda four

days after a regular meeting to include ethics issues raised at the city/council meeting two days after

the original agenda was posted).

Section 10004(e)(5) of FOIA allows a public body to amend its agenda for a meeting up

to six hours before the meeting to include additional matters that may come up after the posting of

the original agenda, but requires that “the reasons for the delay in posting shall be briefly set forth

in the agenda.” The Council did not state any reason for the posting of a revised agenda seven hours

before the special meeting scheduled for January 25, 2005. In its response to your complaint, the

Council now explains that it wanted to be sure that the public and the media knew that the

“personnel” involved was the County Auditor.

We do not believe that the lack of an explanation for why the Council amended the agenda

for the January 25, 2005 special meeting amounted to a violation of FOIA, however. FOIA only

requires the agenda to include “a general statement of the major issues expected to be discussed at

a public meeting.” 29 Del. C. §1000(2)(f). When a personnel matter is one authorized for executive

session, FOIA does not require a public body to name the individual in the agenda. See Att’y Gen.

Op. 99-IB03 (Apr. 28, 1999).

We believe that the original agenda for the Council’s January 25, 2005 special meeting

satisfied the agenda requirements under FOIA by listing as a matter for discussion, “confidential

personnel matter.” When it amended the agenda seven hours before the special meeting on January

25, 2005, the Council did not add an entirely new matter of public business for discussion, but rather

clarified that a matter already noticed (confidential personnel matter) involved the County Auditor.

We do not believe that, under those circumstances, Section 10004(e)(5) of FOIA required an

explanation in the notice and agenda for this change since the change was not required to satisfy the

minimum requirements for an agenda under FOIA.

Conclusion

For the foregoing reasons, we determine that the Council did not violate the open meeting

requirements of FOIA by posting a notice and agenda of a special meeting for January 25, 2005 at

least twenty-four hours in advance, and by posting a revised notice and agenda at least six hours in

advance of that special meeting.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Leonard E. Collins, Jr., Esquire

Phillip G. Johnson

Opinion Coordinator