December 20, 2004
Civil Division-Kent County (739-7641)
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Re: Freedom of Information Act Complaint
Against Sussex County Council
Dear Mr. Kramer:
On November 4, 2004, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), alleging that a committee of the Sussex County Council (“the Council”) violated FOIA by meeting on October 13, 2004 without giving seven days notice to the public.
By letter dated November 16, 2004, we asked for the Council’s response, which we received on December 1, 2004.
According to the Council, at a meeting on October 12, 2004 the Council voted to create a Moderately Priced Housing Program Initiative Committee (“the Committee”) to address the need for moderately priced housing in Sussex County and to develop program standards.
It is not disputed that the Committee posted notice on October 12, 2004 of its first meeting to take place the next day, on October 13, 2004. The agenda for the October 13, 2004 meeting noted that it had not been posted earlier because the “Committee was not established until October 12, 2004.” The County also pointed out in its response that “most of the members were from outside of the Georgetown area and invitations had been extended in anticipation that the County Council would approve the Committee” at its meeting on October 12, 2004.
According to the County, “on October 13, 2004, the Committee members were told on arrival that there was a question as to whether or not the Committee could legally meet and that no business would be conducted. The members were asked to introduce themselves and were told that the first meeting would be held on Wednesday, November 10 and the second meeting on Wednesday, December 8 to begin putting together the recommended standards for the County’s moderately priced housing program. . . . After that, lunch was served and representatives departed without discussing or conducting business.”
It is not disputed that the Committee posted notice of its meetings on November 10 and December 8, 2004 in compliance with FOIA.
FOIA requires that “[a]ll 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.” 29 Del. C. §10004(e)(2). For a special meeting, FOIA allows for notice to be given “as soon as reasonably possible, but in any event not later than 24 hours of such meeting.” Id. §10004(e)(3).
FOIA defines a “meeting” as the “formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.” 29 Del. C. §10002(e). FOIA defines “public business” as “any matter over which the public body has supervision, control, jurisdiction or advisory power.” Id. §10002(b).
Our Office “has interpreted the shorter notice period allowed by FOIA for a special meeting to require some showing of an exigent circumstance or compelling need for the public body to hold a ‘special’ meeting to discuss a matter of public business.” Att’y Gen. Op. 03-IB19 (Aug. 8, 2003). The Council posted notice of the Committee’s first meeting 24 hours in advance, but we do not believe the record shows any exigent circumstance or compelling need not to give the normal seven-days notice required by FOIA. Notice could have been posted at least seven days in advance even if the Committee had not as yet been formed, and canceled if for some reason the Council decided at its October 12, 2004 meeting not to form a committee.
We determine, however, that the gathering of the individual members of the Committee on October 13, 2004 did not amount to a “meeting” subject to FOIA because the members of the Committee did not discuss any matters of “public business.” The record shows that the members of the Committee were specifically advised not to discuss any matters of public business, and that the gathering was for the sole purpose to give the members of the newly-formed Committee an opportunity to meet each other and enjoy a social lunch.
For the foregoing reasons, we determine that the Committee did not violate the open meeting requirements of FOIA on October 13, 2004 because it did not discuss any matters of public business.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady
James D. Griffin, Esquire
Lawrence W. Lewis, Esquire
Deputy Attorney General
Phillip G. Johnson
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