Attorney General's Seal
Attorney General's Opinions


Attorney General Kathy Jennings


Facebook  Twitter  Instagram  Youtube

10001-declarations

97-IB01: FOIA-Complaint Against Town of Laurel

Written on: January 14th, 1997 in 10001 Declaration of Policy

January 14, 1997
New Castle County – Civil Division

Mr. David F. Edwards, Jr.
114 Lakeside Drive
Laurel, DE 19956

RE: Freedom of Information Act
Complaint against Town of Laurel

Dear Mr. Edwards:

Pursuant to 29 Del. C. Section 10005 (e), the Attorney General’s
Office makes this final written determination of whether a
violation of the Freedom of Information Act, 29 Del. C. Sections
10001-10005 (“FOIA”), occurred. Because of the ongoing nature of
your complaint, a complete procedural recitation is in order.

Your original complaint letter dated November 6, 1996 was
received by this Office on November 12, 1996. By letter dated
November 14, 1996 to the Laurel Acting Town Manager, we asked
that she respond to your allegations that the Town violated the
public records and open meeting provisions of FOIA. We did not
ask the Town to respond to the other allegations in your
complaint, since they “involve matters that are outside the
jurisdiction of the Attorney General’s Office.”

By letter dated November 18, 1996, you posed three questions
regarding the jurisdiction of the Attorney General’s Office. By
letter dated November 22, 1996, we responded to those questions.
By letter dated December 3, 1996, we asked the Town’s attorney
for additional information in order to complete our investigation
of this case. By letter dated December 31, 1996, the Town’s
attorney responded, enclosing the documents we had requested.
Based on all the information and documents provided to us in the
course of our investigation, we make the following written
determination.

By two letters dated October 16, 1996, you asked the Town for
copies of approximately twenty documents. By letter dated
November 26, 1996, the Town’s attorney responded, enclosing some
but not all of those documents, and stating that the other
documents did not exist. At my request, the Town’s attorney
caused to be executed an Affidavit of Bonnie Walls, Acting Town
Manager of the Town of Laurel, sworn to on December 31, 1996,
which states: “That she is executing this affidavit to verify
that she has made a diligent search of the Town records, over
which she has custody, and that she has not been able to locate
the documents specified below requested by David F. Edwards, Jr.,
in his letters dated October 16, 1996.” It is the practice of the
Attorney General’s Office to accept such an affidavit from the
custodian of public records to determine that such documents do
not exist for purposes of FOIA. See Att. Gen. Op. 93-I023 (August
31, 1993) (City of New Castle).

As for the September 9, 1996 public meeting, 29 Del. C. Section
10004 (a) provides that “[e]very meeting of all public bodies
shall be open to the public” except for authorized executive
sessions. Section 10004(e)(2) provides 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. The notice shall include the
agenda, if such has been determined at the time, and the dates,
times and places of such meetings; . . . .” Section 10004(4)
further provides that public notice “shall include, but not be
limited to, conspicuous posting of said notice at the principal
office of the public body holding the meeting, . . . .”

The documents submitted by the Town’s attorney in response to our
request show that the agenda for the September 9, 1996 hearing
was posted on August 30, 1996, and that notice of the meeting was
published in The Leader/State Register on September 4, 1996. The
minutes of the “regularly scheduled” September 9, 1996 meeting of
the Planning Commission show that there was discussion about the
proposed Laurel Estates and Shopping Mall for approximately one
hour and forty minutes.

The gravamen of your complaint regarding the notice given of the
September 9, 1996 meeting is that it did not comply with the
town’s subdivision regulations by specially notifying adjoining
property owners. The Town of Laurel does not dispute that special
notice was not given. But, according to the Town’s attorney, “it
was announced at such meeting that the discussion would be for
informational purposes only and that a public hearing, as
required by the Subdivision Regulations, would be held at a later
date.” The minutes of the September 9, 1996 meeting show that the
Subdivision Regulations were not discussed. Even if they were,
the notice requirements of those regulations are separate and
distinct from the notice requirements of FOIA.

We conclude, however, that a violation of FOIA occurred in
connection with the September 9, 1996 regularly scheduled meeting
of the Planning Commission. The agenda was posted on August 31,
1996 at the Commission’s principal office, the Laurel Municipal
Building, Poplar & Mechanic Streets. Notice was also given in The
Leader/State Register on September 4, 1996. The agenda gave the
date and purpose of the meeting, but not the time and place of
the meeting. The newspaper notice gave the date, time (7:00
p.m.), and place of the hearing, as well as the purpose of the
meeting to discuss the Laurel Estates and Shopping Mall.

FOIA requires that all pertinent information about a regular
public meeting — date, time, place, and purpose — must be given
at least seven days in advance. In this case, only the newspaper
notice published five days before the meeting contained all the
pertinent information. Adequate notice of public meetings must be
given sufficiently in advance to allow concerned citizens time to
decide whether to attend the meeting and otherwise get involved
in the political process.

In your original letter of complaint, you stated that you in fact
had notice of the meeting from the newspaper publication, as must
have sixty other citizens who you say “showed up in protest.”
Since a large number of concerned citizens clearly had notice of
the September 9, 1996 meeting of the Planning Commission, we find
that five-days’ notice, as opposed to seven days, was a
“technical violation” of FOIA which did not adversely affect
“substantial public rights” to attend the meeting. Ianni v.
Department of Elections of New Castle County, Del. Ch., 1986 WL
9610, at p. 5 (Aug. 29, 1986) (Allen, C.). Nevertheless, the Town
of Laurel is hereby placed on notice that the open meeting
requirements of FOIA are to be strictly complied with, and that
any future violations may be deemed “deliberate” or “an ongoing
pattern of infractions.” Levy v. Board of Education of the Cape
Henlopen School District, Del. Ch., 1990 WL 154147, at p. 7 (Oct.
1, 1990) (Chandler, V.C.).

Based on our review of your complaint, and the responses of the
Town of Laurel, we conclude that there was a violation of the
open meeting provisions of FOIA in connection with the September
9, 1996 regularly scheduled meeting of the Planning Commission.
For the reasons stated above, we do not believe it necessary to
direct the Town of Laurel to re-notice that meeting in order to
validate any action taken at that meeting.

Very truly yours,

W. Michael Tupman
Deputy Attorney General

APPROVED:
_____________________
Michael J. Rich
State Solicitor
cc: James F. Waehler, Esquire
Elizabeth A. Bacon, Opinion Administrator





+