Rehoboth Beach found to be in violation of FOIA

The state attorney general has ruled Rehoboth Beach violated basic requirements when posting an agenda for a meeting in August. However, city officials are arguing the ruling could delay the flow of information to the public because it would require all support materials to be available when the agenda is posted.

Rehoboth Beach residents Marie Hatkevich and Harvey Shulman submitted a complaint to the attorney general arguing the agenda for an Aug. 21 meeting violated the Freedom of Information Act because the agenda didn’t disclose Randy Mason as then-Mayor Paul Kuhns’ nomination to fill a vacant seat on the city’s board of adjustment. Mason’s application was added to the agenda online prior to the meeting and, ultimately, commissioners approved Mason’s two-year-appointment to the board.

In an Oct. 28 opinion, Deputy Attorney General Dorey L. Cole said FOIA requires a public body to post a notice and agenda at least seven days prior to a regular meeting but permits a public body to amend an agenda up to six hours prior to a meeting, provided that the reason for the delay is set forth briefly in the agenda. However, continued Cole, this exception does not authorize a public body to amend the agenda prior to a meeting for any reason, but rather applies to add items that come up suddenly and cannot be deferred to a later meeting.

Cole said, in this case, the city amended the agenda to include Mason’s name less than seven days prior to the meeting without providing a reason for the delay in adding this information. The city violated FOIA in this regard, she said.

In response to the opinion, City Solicitor Glenn Mandalas submitted a request for an amended opinion Oct. 30. He argues the question submitted by the complaint was never answered.

“You determined there was a violation because the city later added the name of the individual without providing a reason why the name was added. Consequently, you answered a question that was not asked,” said Mandalas, in his request to Cole. “This opinion leaves practitioners wondering if an agenda needs to include the name of an individual being considered for an appointment.”

In response to Glenn’s request, Hatkevich said the attorney general may have ruled on the original question, but the city caused that to change by attempting to right the wrong with a late revelation of the nominee’s name with no reason given for the delay. Additionally, the amendment to the agenda was out of compliance with the exception cited by the attorney general’s office, she said.

In an email Nov. 3, city spokesperson Krys Johnson said the opinion, perhaps unintentionally, runs contrary to efforts to advance transparency in city government. The city has become more technologically sophisticated in recent years, and uses a variety of mechanisms to make public records accessible to the public, including those supporting public meeting agenda topics.

“Because the AG has basically opined that the agenda must be amended to include any additional supporting materials after the original publication of the agenda, the city will be reluctant to add materials after the agenda has been published, thereby delaying the flow of information to the public,” said Johnson in a follow-up email Nov. 4.

In an email Nov. 4, Cole declined the invitation to produce an amended opinion. The opinion addressed the circumstances presented, she said.

Moving forward, and despite the violation, it appears Mason will remain on the board of adjustment. In the original opinion, Cole said remediation within the office’s authority is not feasible at this time.