August 30, 2002 Civil Division-Kent County
Major William E. Manning
Fenwick Island Police Department
800 Coastal Highway
Fenwick Island, DE 19944
Re: Freedom of Information Act Complaints Against Town of Fenwick Island
Dear Major Manning:
Our Office received your Freedom of Information Act ("FOIA") complaint on June 20 , 2002. You allege that the Town of Fenwick Island ("the Town") violated FOIA by failing to remediate previous FOIA violations in accordance with our letter of June 10, 2002. That letter directed the Town Council to comply with our directives "within thirty days of the date of this letter, and to confirm in writing when it has been done."
By letter dated July 22, 2002, the Town's attorney provided us with copies of the minutes of the Town's meeting on June 28, 2002 and a tape recording of that meeting. We have reviewed the minutes and listened to the tape, and are satisfied that the Town complied with our remedial directives. The agenda for the June 28, 2002 meeting listed "Discussion and Ratification of February Decision to Increase Police Salaries." The minutes show that the Council discussed the issue in public and then voted in public to ratify the decision to increase police salaries.
By letter dated July 10, 2002, you made a second complaint alleging that the Town violated FOIA by not allowing public discussion of yours and the Chief Dickerson's salaries at the June 28, 2002 meeting. That issue was not listed on the agenda for that meeting, and the Town properly decided that it could not discuss those issues without advance notice to the public as required by FOIA.
We feel it necessary to comment regarding the characterization by the Town's attorney that our opinion dated May 21, 2002 cited only "technical violations of notice requirements and minutes." We do not agree. The gravamen of the violations we found were that the Town was meeting to discuss important matters of public business outside the public view in a manner not authorized by law. The severity with which we viewed the infractions is clear from the nature of the remedy required. We would not have directed remediation if we did not believe that those violations affected the substantial rights of citizens.
For the foregoing reasons, we find that the Town did not violate the open meeting requirements of FOIA at the June 28, 2002 meeting, and that the Town has satisfied our directives to remediate the FOIA violations that occurred at meetings earlier this year.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
Tempe Brownell Steen, Esquire
Phillip G. Johnson, Opinion Coordinator