June 25, 1999
Civil Division-Kent County (739-7641)
Mr. Albert G. Porach
220 E. Park Place
Newark, DE 19711
Re: Freedom of Information Act
Complaint Against City of Newark
Dear Mr. Porach:
Our Office received your Freedom of Information Act (“FOIA”) complaint on March 25, 1999. You alleged that the City of Newark (“the City”) violated the notice requirements of FOIA by amending the agenda at the start of the City Council meeting on March 22, 1999 to include a $675,000 amendment to the 1999 city budget.
By letter dated March 31, 1999, we asked the City to respond to your complaint within ten days. The City Solicitor asked for an extension of time to respond to your complaint, which we granted.
In its letter of April 27, 1999 (which we did not receive until May 3, 1999), the City acknowledged that “[t]he agenda of the March 22 Council meeting was amended at the commencement of this meeting in order to consider the budget amendment.” The City claims that
“[a]gendas are subject to the addition or deletion of items ‘which arise at the time of the public body’s meeting'” (quoting 29 Del. C. Section 10004(e)(2).
FOIA requires that “[e]very meeting of all public bodies shall be open to the public” except those closed for executive session for a purpose authorized by law. 29 Del. C. Section 10004(a). In addition,
[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. The notice shall include the agenda, if such has been determined at that time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.
29 Del. C. Section 10004(e)(2).
This Office has previously addressed the issue of a public body’s amending the agenda. The key is whether the amended matter for discussion arose at the time of the public body’s meeting. “If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirements of FOIA. On the other hand, discussion of noticed items can often segue into related public issues, and FOIA provides flexibility to address that situation.” Att’y Gen. Op. 97-IB20 (Oct. 20, 1997).
The agenda for the March 22, 1999 meeting did not give any indication that the City Council would consider and vote on an amendment to the 1999 budget. Yet twelve days earlier, on March 10, 1999, the City entered into an agreement of sale to purchase a parcel of land on East Delaware Avenue. The purchase price was not included in the original 1999 budget, which therefore required an amendment. The issue of a budget amendment arose well prior to the meeting on March 22, 1999, and could have been included in the agenda posted for that meeting within the seven days required by law.
For the foregoing reasons, we conclude that the City violated the notice and agenda requirements of FOIA by trying to revise the agenda at the start of the March 22, 1999 meeting to include the $675,000 budget amendment. As a consequence, the Council’s vote approving the amendment is voidable.In order to remediate this violation of FOIA, we direct the City to place the budget amendment on the agenda of the next regularly scheduled meeting, or at a special meeting if scheduled sooner, to give the public notice and an opportunity to be heard prior to voting on the budget amendment. We also direct the City to report back to us in writing when it has complied with this remediation directive.
The Department of Justice acknowledges that this opinion has been delayed as a result of our internal review process. We regret any inconvenience caused thereby.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Roger A. Akin, Esquire, City Solicitor
Mr. Phillip G. Johnson, Opinion Coordinator

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