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
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
Michael J. Rich
cc: The Honorable M. Jane Brady
Clifford B. Hearn, Jr. Esquire
Phillip G. Johnson, Opinion Coordinator BACK TO INDEX