OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General (Informal) Opinion No. 13-IB10
December 6, 2013
VIA EMAIL AND REGULAR MAIL
John A. Mancus
897 Wilson Drive
Dover, Delaware 19904-2434
RE: FOIA Complaint Against the Kent County Board of Elections
Dear Mr. Mancus:
By petition, received via email on November 18, 2013, you assert that the Kent County Board of Elections (the “Board”) failed to post notice for the Board meeting held on September 17, 2013 in accordance with 29 Del. C. § 10004(e)(4) and request that we seek to invalidate any action taken by the Board at that meeting. The petition also asserts that the Board’s meeting minutes are not being posted in the fashion prescribed by 29 Del. C. § 10004(f). We agree that the Board has not posted notices/agendas and meeting minutes as required by Section 10004(e)(4) and Section 10004(f) and recommend that the Board take certain corrective actions. We do not think that invalidation is an appropriate remedy under the circumstances presented in this case.
The petition alleges that the Board failed to post notice in accordance with 29 Del. C. § 10004(e)(4). That section provides, in pertinent part:
Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held . . . . In addition, all public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post said notice to the designated State of Delaware website approved by the Secretary of State.
29 Del. C. § 10004(e)(4).
The petition asserts that the Board failed to make a “conspicuous posting” of the notice/agenda for the September 17, 2013 meeting. The petition notes that the September 17th notice/agenda was not posted on the commercial, all-glass door or side windows at the entrance to the building that houses the Board’s principal office and meeting space (100 Enterprise Place, Suite 5, Dover, Delaware). The petition also notes that there is no bulletin board within the common public area of the building on which to post public notices. The Board contends that it complied with the “conspicuous posting” requirement because the Board timely posted the September 17th notice/agenda on the front door of its office.
Section 10004(e)(4) does not address where notices must be physically posted at a public body’s office or meeting space. It requires only that any postings be conspicuous, which we interpret as “easy to see.” See http://www.merriam-webster.com/dictionary/conspicuous. Whether a particular notice/agenda was conspicuously posted depends on the facts. In this case, the Board’s office/meeting space (Suite 500) is housed in a commercial building with multiple suites and multiple tenants. The September 17th notice/agenda was posted on the door of Suite 500, the entrance to the Board’s principal office and meeting space. The record contains no evidence that the posting was difficult to see, or that any citizen was prejudiced by the lack of postings at or near the entrance to the building. The September 17th notice/agenda was conspicuously posted.
The petition also asserts that the Board failed to electronically post notice of the September 17th meeting on the State’s Public Meeting Calendar, the “designated State of Delaware website approved by the Secretary of State.” 29 Del. C. § 10004(e)(4). The Board asserts that it substantially complied with Section 10004(e)(4) because the Board electronically posted the September 17th notice/agenda on the official website of the Kent County Department of Elections (the “Department”), the entity that provides administrative support to the Board. The Board is encouraged to post notice of its meetings on the Department’s website, but such postings do not substitute for the notice expressly required by Section 10004(e)(4). The Board did not comply fully with Section 10004(e)(4).
Lastly, the petition asserts that the Board has not been posting its meeting minutes in accordance with 29 Del. C. § 10004(f). That section requires the Board and other public bodies within the executive branch of state government to electronically post meeting minutes on the designated State of Delaware website approved by the Secretary of State — i.e., the Public Meeting Calendar. See 29 Del. C. § 10004(f).
The Board asserts that minutes for the September 17th meeting were posted on the Public Meeting Calendar, but we were unable to find them. As far as we can tell, that site contains no postings (notices/agendas or minutes) for any Board meetings prior to October 2013. While Board minutes for meetings held prior to October 2013 are posted on the Department’s website, those postings do not satisfy the express requirements of Section 10004(f).
The violations identified above do not implicate substantial public rights. The record contains no evidence that any citizen was prejudiced in any way by the Board’s failure to adhere strictly to the requirements of Section 10004(e)(4) and Section 10004(f). Accordingly, invalidation is not an appropriate remedy. We nonetheless do believe that some form of remediation is appropriate in this case.
To address the violations we have identified, we are requesting that the Board confirm within five (5) business days from the date of this determination that it will post on the Public Meeting Calendar (a) all historical notices/agenda and minutes for the calendar year 2013 and (b) all future notices/agendas and meeting minutes.
Very truly yours,
/s/ Jason W. Staib
Jason W. Staib
Deputy Attorney General
cc: Ian R. McConnel, Chief Deputy Attorney General (via email)
Ann Woolfolk, Deputy Attorney General (via email)