PRINT VERSION: Attorney General Opinion No. 24-IB15

 

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE      

Attorney General Opinion No. 24-IB15

April 22, 2024

VIA EMAIL

Carol DiGiovanni
cmdigiovanni@yahoo.com

 

RE:     FOIA Petition Regarding the Village of Arden

 

Dear Ms. DiGiovanni:

We write in response to your correspondence alleging that the Village of Arden violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur.  As discussed more fully herein, we find that the Village did not violate FOIA by failing to post notice of its March 25, 2024 meeting.

BACKGROUND

The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village.[1]  The Village Charter requires the Town Assembly to hold four regular meetings a year and to mail the meeting notice to all residents.[2]  You filed this Petition alleging that the Village failed to properly post notice of the March 25, 2024 Town Assembly meeting as required by FOIA.  You state that the Town Assembly meetings are held at the Gild Hall or another appropriate location.  For the March 25, 2024 Town Assembly meeting, you assert that you received the mailed meeting notice, and the notice was posted to the website, but when you visited the bulletin board at Gild Hall, no meeting notice was posted, which constitutes a violation of FOIA.  You submitted a photograph that you took on March 21, 2024 as proof of your claim.

On April 2, 2024, the Village’s counsel replied to the Petition (“Response”) and attached two affidavits.  In the first affidavit, the Secretary of the Town Assembly attests that she posted the notice of this meeting on the Gild Hall bulletin board on March 11, 2024, and again on March 22, 2024, after being alerted through this Petition that the notice was missing.  The Secretary also states under oath that she posted the meeting notice on the website on March 11, 2024 and mailed notice of the meeting to all residents on March 10, 2024.  In the second affidavit, an Arden resident attests to witnessing the Village Secretary post the notice of the meeting on the Gild Hall bulletin board on March 11, 2024.

DISCUSSION

            The public body has the burden of proof to demonstrate compliance with FOIA.^[3]  In certain circumstances, a sworn affidavit may be required to meet that burden.^[4]  In this case, the Petition claims that the Town Assembly violated FOIA by failing to post notice of its March 25, 2024 Town Assembly meeting at Gild Hall.  FOIA requires the “conspicuous posting of [the meeting] 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.”[5]  The Village presented sworn statements that the Village Secretary did, in fact, post the meeting notice on the Gild Hall bulletin board on March 11, 2024, and when alerted that the notice was missing, the Village Secretary promptly reposted notice of the meeting.  On this factual record, we do not find a violation of FOIA.

 

CONCLUSION

Based on the foregoing, we conclude that the Village did not violate FOIA by failing to post the notice of its March 25, 2024 Town Assembly meeting as required by 29 Del. C. § 10004(e)(5).

Very truly yours,

/s/ Dorey L. Cole
__________________________
Dorey L. Cole
Deputy Attorney General

 

Approved:

/s/ Patricia A. Davis
__________________________
Patricia A. Davis
State Solicitor

cc:       Edward B. Rosenthal, Attorney for the Town Assembly, Village of Arden

[1]           Arden, Del., C. (Charter) § 4.

[2]           Id., § 5.

[3]           29 Del. C. § 10005(c).

[4]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

[5]           29 Del. C. § 10004(e)(5).

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