PRINT VERSION: Attorney General Opinion No. 25-IB05

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB05 

January 21, 2025

 

VIA EMAIL

Jennifer Pawloski

jenpawloski@yahoo.com

 

RE:     FOIA Petition Regarding Association of Coastal Towns

 

Dear Ms. Pawloski:

We write in response to your correspondence alleging that the Association of Coastal Towns (“ACT”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat your 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.  For the reasons set forth below, we determine that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

BACKGROUND

The Association of Coastal Towns held a meeting on December 13, 2024.  Your Petition alleges that ACT violated FOIA by failing to include notice of a public comment period in its agenda.  In addition, you assert that ACT failed to second a motion to recreate meeting minutes and voted to dissolve their organization at this meeting.

On December 18, 2024, ACT, through its legal counsel, replied to the Petition (“Response”).  ACT states that the public comment period was inadvertently omitted from the agenda, but the Mayor verbally amended the agenda to include public comment before the meeting began.

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA.[1]  In certain circumstances, a sworn affidavit may be required to meet that burden.[2]

FOIA mandates that public bodies meet specific requirements when holding public meetings, including advance notice, posting notices and agendas, an opportunity for public comment, and maintaining meeting minutes.[3]  “As a part of the requirements to hold an open meeting, Section 10004(a) states that a ‘meeting that is open to the public under paragraph (a)(1) of this section must include time for public comment.’”[4]  This public comment period must appear as an item on the agenda.[5]  ACT acknowledges its agenda did not include a public comment period, and FOIA does not permit a new item to be added at the outset of a meeting.[6]  As such, we find a violation occurred.

The Petition also references the actions of ACT at that meeting, including ACT’s refusal to create past meeting minutes and the vote to dissolve the organization.  This Office is statutorily charged with opining on FOIA violations and is not empowered to address a public body’s decision to dissolve rather than come into compliance with FOIA.[7]

Having found that ACT violated FOIA by failing to appropriately notice the public comment period in the agenda, we consider whether any remediation is appropriate to recommend.  Section 10005(a) states that any “action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery.” The authority to invalidate a public body’s action, or to impose other relief, is reserved for the courts.[8]  The Delaware Court of Chancery stated that the “remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests.”[9]  In this case, the December 13, 2024 meeting recording submitted with this Petition indicated that ACT voted at this meeting to dissolve, effective as of December 31, 2024.  Thus, we make no further recommendations.

To the extent you wish to pursue legal remedies or enforcement, you are encouraged to promptly review whether you wish to file suit under Section 10005.  Section 10005(a) provides that “[a]ny citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen’s learning of such action but in no event later than 6 months after the date of the action.”

CONCLUSION

For the foregoing reasons, we conclude that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

 

Very truly yours,

/s/ Dorey L. Cole

_____________________________

Dorey L. Cole

Deputy Attorney General

 

Approved:

/s/ Patricia A. Davis

_______________________________

Patricia A. Davis

State Solicitor

cc:       James E. Liguori, Attorney for the Association of Coastal Towns

[1]             29 Del. C. § 10005(c).

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

[3]           29 Del. C. § 10004.

[4]           Del. Op. Att’y Gen. 24-IB26, 2024 WL 4009114, at *3 (Jun. 26, 2024).

[5]           Id. (“A public comment period is a major issue for discussion, and citizens must receive public notice of their opportunity for public comment so they can decide whether they wish to attend the meeting. As such, we also find that the City further violated FOIA by failing to notice time for public comment on its agendas for each of these meetings.”).

[6]            29 Del. C. § 10004(e)(6) (requiring final agendas be posted no later than six hours before a meeting); see also Del. Op. Att’y Gen. 19-IB48, 2019 WL 5208244, at *3 (Sept. 9, 2019) (“A public body may not simply amend its agenda at the meeting to adopt a new item.”).

[7]           See 29 Del. C. § 10005.

[8]           Id.

[9]           Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986).

 

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