PRINT VERSION: Attorney General Opinion No. 25-IB09
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB09
February 7, 2025
VIA EMAIL
Edward E. Bintz
ed.bintz100@gmail.com
RE: FOIA Petition Regarding the Association of Coastal Towns
Dear Mr. Bintz:
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, in relation to its December 13, 2024 meeting, violated FOIA by failing to include a time for public comment on its agenda and by failing to timely post the notice of the meeting location and the information for monitoring and participating in the meeting.
BACKGROUND
The Association of Coastal Towns held a public meeting on December 13, 2024.[1] The Petition alleges that ACT included a “Background” section in this meeting agenda that was substantively inaccurate and misleading; that ACT failed to include an agenda item for this Office’s remediation recommendations; that ACT failed to include in its agenda time for public comment; that ACT did not provide notice of the location of the meeting at least seven days in advance; and that ACT has not yet designated a FOIA coordinator, implemented a request policy, or maintained an online portal for accepting FOIA requests, which are continuations of the violations found in the former Attorney General Opinion No. 24-IB21.
On January 9, 2025, ACT, through its legal counsel, replied to the Petition (“Response”). ACT argues that the final agenda put the public on notice of the date, time, and location, as well as the items to be discussed, and nothing in the agenda posting was inaccurate or misleading. ACT asserts that the agenda provided notice about the organization’s proposed action to dissolve the organization, and although the agenda omitted the public comment period, the chair made clear before the meeting that public comment would be accepted. ACT contends it had no legal obligation to address the Section 10003 issues that were raised by this Office in Attorney General Opinion No. 24-IB21. ACT’s counsel states that ACT considers itself disbanded.
DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA.[2] In certain circumstances, a sworn affidavit may be required to meet that burden.[3] 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.[4] These open meeting requirements apply to a “public body.” In Attorney General Opinion No. 24-IB21, this Office previously determined that ACT is a public body, as defined by Delaware’s FOIA law.[5]
Sufficiency of ACT’s Agenda Descriptions
The first two claims relate to the sufficiency of ACT’s descriptions in the December 13, 2024 meeting agenda. An agenda for a public meeting must include a “general statement of the major issues” which a public body expects to discuss[6] and must be worded in “plain and comprehensible language.”[7] Delaware courts have opined on the means to determine the sufficiency of an agenda:
In order that the purpose of the agenda requirement be served, it should, at least, “alert members of the public with an intense interest in” the matter that the subject will be taken up by the [public body]. In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration. . . . FOIA provides an informational right to allow public involvement in government.[8]
“[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item.”[9] FOIA is intended to ensure that public business is done in the open, so that citizens may hold public officials accountable. “The purpose of FOIA is not to provide a series of hyper-technical requirements that serve as snares for public officials, and frustrate their ability to do the public’s business, without adding meaningfully to citizens’ rights to monitor that public business.”[10]
In this case, the Petition first claims that ACT violated FOIA by including on its meeting agenda a description of the previous Attorney General Opinion that is substantively inaccurate. An agenda item must give adequate notice of the subject expected to be a topic of discussion at the meeting.[11] However, when a public body opts to provide detailed information about that item, FOIA does not give this Office the authority to regulate the substantive accuracy of those more detailed descriptions, beyond ensuring FOIA’s notice requirement for the subject matter is met.[12] Here, we find that the agenda item, “Discussion and Possible Vote to Dissolve the Association of Coastal Towns (“ACT”) as of December 31, 2024 and Return the Unused Dues Funds in Equal Portion to the Seven (7) ACT Member Towns After All Debts Have Been Paid,” was adequate notice of ACT’s discussions about whether to dissolve. A member of the public interested in this subject matter would be able to review this item and determine this item would be under consideration. The recitation of this item’s background is not subject to our review.[13]
In addition, the Petition claims that this same agenda item does not provide adequate notice of the discussions that occurred at the meeting regarding this Office’s recommendations for remediation stated in Attorney General Opinion No. 24-IB21 issued in May 2024. The “Background” section for this agenda item specifically mentions “an opinion issued on May 28, 2024” by the Delaware Attorney General. Again, we find no violation in this regard, as a citizen with an interest how the recommendations in that opinion might be addressed had sufficient notice of this subject matter from the agenda.
Time for Public Comment
The Petition further contends that this meeting agenda failed to include a time for public comment. ACT acknowledges its agenda did not include this comment period, but before the meeting, the chair verbally stated that public comments would be accepted. “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.’”[14] This public comment period must appear as an item on the agenda.[15] 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.[16] As such, we find a violation occurred.
Meeting Notice
The Petition also alleges that ACT initially noticed this meeting as a fully virtual meeting but failed to timely post the location of the meeting. The meeting notice posted on December 6, 2024 states the meeting will be held “via Zoom” and did not note any physical location in that notice, instead stating “Zoom Information to follow on Monday, December 9, 2024.”[17] On December 9, 2024, the revised notice was posted, stating the physical location of the meeting, along with the Zoom information and call-in number.
FOIA requires that a meeting notice be posted at least seven days in advance of a meeting. This notice is to include the agenda, if it has been determined, and the date, time, and place of the meeting, including whether the meeting would be conducted under the virtual meeting provisions in Section 10006A.[18] Currently and at the time of ACT’s December meeting, Section 10006A required virtual meetings to have an “anchor location,” which is the physical meeting space within the geographic jurisdiction of public body that is open to the public and at which one or more members of a public body attend the virtual meeting.[19] Section 10006A(c) also requires that the meeting notice include “information regarding how the public can monitor or participate in the meeting under paragraph (c)(6) of this section.” Thus, the meeting notice for a virtual meeting must include both the meeting’s anchor location and information about how the public can virtually monitor and participate in the meeting.
This meeting notice posted on December 6, 2024 indicated it would be a virtual meeting but included neither the meeting’s anchor location nor the information for virtually monitoring or participating in the meeting. The December 9, 2024 revised notice was updated to include the requisite information but was posted less than seven days prior to the meeting. While the statute affords additional time for the posting of an agenda in certain circumstances, such flexibility is not permitted for the notice detailing the meeting’s date, time, location, and virtual monitoring and participation information, where applicable.[20] As such, we determine that ACT violated FOIA by failing to post a notice with the December 13, 2024 meeting’s anchor location and virtual meeting information at least seven days in advance of the meeting.
Recommendations
Having found that ACT violated FOIA, 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.[21] 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.”[22] ACT’s Response indicates that ACT is dissolved. 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, in relation to its December 13, 2024 meeting, violated FOIA by failing to include a time for public comment on its agenda and by failing to timely post the notice of the meeting location and the information for monitoring and participating in the meeting.
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] Petition.
[2] 29 Del. C. § 10005(c).
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[4] 29 Del. C. § 10004.
[5] Del. Op. Att’y Gen. 24-IB21, 2024 WL 3166427, at *3 (May 28, 2024).
[6] 29 Del. C. § 10002(a).
[7] Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *8 (Del. Ch. May 19, 1994).
[8] Lechliter v. Del. Dep’t of Natural Res. & Env’t Control, 2017 WL 2687690, at *2 (Del. Ch. Jun. 22, 2017) (quoting Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *4 (Del. Ch. Aug. 29, 1986).
[9] Del. Op. Att’y Gen. 10-IB12, 2010 WL 4154564, at *1 (Sept. 28, 2010).
[10] Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017).
[11] 29 Del. C. § 10002(a).
[12] 29 Del. C. § 10005(e).
[13] Lechliter, 2017 WL 2687690, at *2 (“[M]embers of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration.”).
[14] Del. Op. Att’y Gen. 24-IB26, 2024 WL 4009114, at *3 (Jun. 26, 2024).
[15] 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.”).
[16] 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.”).
[17] Petition, Ex. B.
[18] 29 Del. C. § 10004(e)(2).
[19] 29 Del. C. § 10006A (requiring virtual meetings, that are not held under subsections (e) or (f) for a state of emergency or preventing a public health emergency, to have an anchor location).
[20] 29 Del. C. § 10004(e)(6) (“When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.”); see Del. Op. Att’y Gen. 17-IB38, 2017 WL 3628771, at *5 (Aug. 11, 2017) (“FOIA provides flexibility for a public body to amend the agenda up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.”) (citation omitted); Del. Op. Att’y Gen. 17-IB15, 2017 WL 3426253, at *6 (July 7, 2017) (citing a three-step test for determining if an agenda was properly amended six hours in advance of a public meeting: 1) the amended agenda must adequately describe the new items and be posted at least six hours in advance of the meeting; 2) the amended agenda must include a brief statement describing the reason for delay; and 3) the public body must be able to make a showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention); Del. Op. Att’y Gen. 07-IB10, 2007 WL 4732793, at *2 (May 10, 2007) (stating that our Office has cautioned that Section 10004(e)(5) does not allow a public body to amend the agenda up to six hours prior to the meeting for any reason, but it permits the addition of items up to six hours before the meeting that come up suddenly and cannot be deferred to a subsequent meeting) (citation omitted).
[21] 29 Del. C. § 10005.
[22] Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986).
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