Civil Division-Kent County
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Re: Freedom of Information Act Complaints Against Sussex County Council
Dear Mr. Kramer:
On April 11, 2001, our Office received your Freedom of Information Act ("FOIA") complaint against the Sussex County Council ("the Council") alleging that the Council violated the open meeting requirements of FOIA by failing to post a notice and agenda seven days in advance of a meeting on April 2, 2001. On April 18, 2001, our Office received a second FOIA complaint from you alleging the Council and its Committee on Industrial Revenue Bonds ("the IRB Committee") failed to post the required agendas seven days in advance of their meetings on April 10, 2001. You also alleged that the IRB Committee did not prepare minutes of its meeting on April 10, 2001.
By letter dated April 27, 2001 we asked the Council to make a consolidated response to your two complaints within ten days. We received the Council's response (dated May 9, 2001) on May 12, 2001.
FOIA requires public bodies like the Council to "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; . . . ." 29 Del. C. § 10004(e)(2).
FOIA defines "agenda" as "a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor . . . ." Id. § 1000(2)(f).
"Public notice" includes but is not "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." Id. § 10004(e)(4).
"Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members . . . of each vote taken and action agreed upon." Id. § 10004(f).
A. April 2, 2001 "Workshop"
On April 2, 2001, there was a joint workshop attended by all five members of the Council and eleven representatives from the Delaware Department of Transportation to discuss hurricane evacuation strategies, beach traffic, and other matters of public concern. Also attending the workshop were state legislators, the mayors or city managers of nine Sussex County municipalities, and representatives from Governor Minner's and Senator Carper's offices.
The Council admits that it did not post a notice and agenda of the April 2, 2001 workshop seven days in advance. According to the Council, this failure "was an unfortunate error and omission." The Council, however, points out that a copy of the agenda for the workshop was attached to the County Administrator's March 13, 2001 report, and there was a reminder about the workshop in the County Administrator's March 27, 2001 report. The Council claims those reports were "read at the County Council meeting and circulated to members of the press and public." The Council also suggests that the workshop was not a "public meeting" for purposes of FOIA because "no decision making was undertaken or votes made during the course of the joint workshop."
We do not agree with the Council's legal position that the workshop was not a "public meeting" for purposes of FOIA. "[A] gathering of a public body, even informally, for the purposes of discussing . . . public business constituted a meeting within the statutory definition." Levy v. Board of Education of Cape Henlopen School District, Del. Ch., 1990 WL 154147, at p. 4 (Oct. 1, 1990) (Chandler, V.C.). It is irrelevant whether the Council voted to take any official "action" at the workshop. "'[A]ction by a public body includes fact gathering, deliberations and discussions, all of which surely influence the public body's final decision." Id. at p. 6.
The Council contends that mention of the workshop in the County Administrator's March 13 and March 27, 2001 reports satisfied the notice requirements of FOIA. We do not agree. While public bodies are encouraged to give notice in different forms, many citizens rely on visits to the bulletin board outside a public body's regular meeting place for their notice of upcoming meetings. "[I]t should not be incumbent upon the public to search out and discover meetings at which public business is to be considered and discussed." Levy, at p. 4.
We do not find these violations merely "technical." However we do not believe that remediation is required. Some interested citizens may not have attended the workshop for lack of notice, but they were well represented by their elected representatives from city, state, and federal government. The Council did not take any official action at the workshop, and no remedial purpose would be served by having another workshop to discuss the same issues.
B. April 10, 2001 Meeting of the IRB Committee
On March 21, 2001 the IRB Committee posted notice and an agenda for its meeting on April 10, 2001. The agenda listed two items of business: "Public Hearing: Application - PATS, Inc." and "Other Business."
On March 26, 2001, Sussex County published notice in The News Journal legal notices section of an application by Pat's, Inc., a Maryland corporation, for the issuance of $4.5 million in industrial revenue bonds. The bonds were to finance the construction of "an approximately 50,000 square foot building to be utilized [for] its business of manufacturing and installing auxiliary fuel tanks and systems for business aircraft" at the Sussex County Industrial Airpark. We find that such notice in the legal notices section of one newspaper does not satisfy the public notice requirements of FOIA, but must at least be coupled with "conspicuous posting of said notice at the principal office of the public body holding the meeting." 29 Del. C. § 10004(e)(4).
At 9:00 a.m. on April 10, 2001, the IRB Committee met to consider the application of Pat's, Inc. The Council did not provide us with the minutes of that meeting, and apparently none were prepared. Immediately after the committee met, the Council held its regular weekly meeting starting at 10:00 a.m. A member of the IRB Committee made an oral report to the full Council recommending approval of the Pat's, Inc. application. The Council then voted (5-0) to approve the Committee's recommendation.
"[W]hen an agency knows that an important specific aspect of a general subject is to be dealt with, it satisfies neither the spirit nor the letter of the Freedom of Information Act to state the subject in such broad generalities as to draw the public's attention to the fact that specific important subject will be treated." Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610, at p. 5 (Aug. 29, 1986) (Allen, C.). We find that the IRB Committee's agenda did not draw the public's attention to the possibility of the County's issuing $4.5 million in industrial revenue bonds to construct a new manufacturing facility. Very few citizens would understand what "Application - PATS Inc." even meant.
We also find that the IRB Committee failed to prepare minutes of its April 10, 2001 meeting. Although the substance of the committee's meeting was reflected in the minutes of the Council's meeting immediately following, the Council's minutes do not record which committee members were present and "each vote taken and action agreed upon." 29 Del. C. § 10004(f).
C. April 10, 2001 Regular Meeting Of The Council
On April 3, 2001, the Council posted a notice and agenda of its regular meeting on April 10, 2001. Listed in the agenda was "Industrial Revenue Bond (IRB) Committee Report." The minutes of the Council meeting reflect that a member of the IRB Committee made an oral report to the Council about the committee's meeting earlier that morning. He "advised that the [IRB] Committee recommended approval of the [Pat's, Inc.] application." The Council voted unanimously to approve the revenue bonds.
We find that the Council's agenda for the April 10, 2001 meeting did not draw the public's attention to the possibility that the Council might be approving $4.5 million dollars in industrial revenue bonds. The agenda only mentioned a "report" by the IRB Committee without any mention of the name of the applicant, purpose of the financing, or the location and nature of the proposed facility to be financed.
The importance of public involvement in this matter is underscored by the Tax Equity and Fiscal Responsibility Act, which permits tax-exempt status for industrial development bonds only if issued after a voter referendum or "a public hearing following reasonable public notice." 26 U.S.C. § 103(k)(2)(B)(i) (1982). Federal regulations define "public hearing" as "a forum providing reasonable opportunity for interested individuals to express their views, both orally and in writing, on the proposed issue of bonds and the location and nature of a proposed facility to be financed." Treas.Reg. 5f.103-2(g)(2). Federal regulations define "reasonable public notice" as "notice which is reasonably designed to inform residents of the affected governmental units, including residents of the issuing unit and the governmental unit where a facility is to be located, of the proposed issue." Treas.Reg. § 5f.103-2(g)(3) (1983).
The FOIA violations involving the April 10, 2001 meetings are not merely
technical violations that can be cured by ratification of the Council's
decision at another meeting. Rather, we find that the violations denied
the public a right to express their views on the proposed issue of bonds
and the location and nature of the a proposed facility to be financed.
[I]t is desirable that affected citizens have an
opportunity first to provide the decision-making
agency with their views and, second, have an
opportunity to understand the basis upon which
the ultimate decision is made. . . . The public
body might be put in a position to make a better
decision ultimately and, secondly, a citizen or
organization of citizens that understands the
decision may feel, if not please with the ultimate
outcome, at least content that its views have been
considered and the decision has been reached in
an impartial and fair way.
Ianni, 1986 WL 9610, at p. 6.
We believe that the appropriate way to remediate these violations and carry out the objectives of the open meeting law is to begin the decision-making process anew. The IRB Committee should give proper notice to the public of a meeting to discuss the Pat's, Inc. application, and prepare minutes of that meeting. The Council should then give proper notice of a meeting (after the IRB Committee meeting) to consider the report and recommendation of the IRB Committee. In this way, the citizens will "have an opportunity first to provide the [IRB Committee and the Council] with their views and, second, have an opportunity to understand the basis upon which the ultimate decision is made." Ianni, at p. 6.(1)
For the foregoing reasons, we find that the Council violated FOIA by: (1) failing to post a notice and agenda of its April 2, 2001 meeting at its regular meeting place seven days in advance; (2) failing to provide a sufficiently detailed agenda for the April 10, 2001 meeting of the IRB Committee; (3) failing to prepare minutes of April 10, 2001 meeting of the IRB Committee; and (4) failing to post a sufficiently detailed agenda for the meeting of the Council on April 10, 2001.
We do not think that any remediation is necessary for the first violation, but caution the Council that in the future it should strictly comply with the open meeting requirements of FOIA. As for the remaining violations, we direct the Council to re-notice the Pat's, Inc. industrial revenue bond application, first for a meeting of the IRB Committee, and then for a regularly scheduled meeting of the Council, both meetings to take place within the thirty days of the date of this letter. The notices and agendas for those meetings must be posted at least seven days in advance at the regular meeting place of the Council. The Council's attorney is asked to report
back to our Office within thirty days of the date of this letter to confirm that the Council has taken and completed these steps.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: Dennis L. Schrader, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator
1. In both of your
complaints, you asked that "each and every one of the County Council forfeit
the equivalent of one days pay" for any FOIA violation. The forfeiture
provision, 29 Del. C. § 10004(i), only applies if the
Attorney General files a lawsuit in court to enforce the open meeting law,
and is therefore inapplicable here.
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