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.
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).
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.
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
Malcolm S. Cobin
cc: The Honorable M. Jane Brady
James B. Griffin, Esquire
Phillip G. Johnson