PRINT VERSION: Attorney General Opinion No. 25-IB12

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB12

 February 27, 2025

 

VIA EMAIL

David Moskowitz

cfacpamba@gmail.com 

RE:     FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. Moskowitz:

We write in response to your correspondence alleging that the Town of Dewey Beach 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 of whether a violation of FOIA has occurred or is about to occur.  For the reasons set forth below, we determine that the Town’s Climate Change Committee did not violate FOIA by voting on a liaison position related to its public education campaign at its January 18, 2025 meeting and by not calling for public comment prior to the meeting’s adjournment when no member of the public was present. 

BACKGROUND

The Climate Change Committee of the Town of Dewey Beach held a public meeting on January 18, 2025.  This Petition alleges that the Committee violated FOIA during this meeting by voting on the appointment of a liaison without adequate notice in the agenda and by failing to call for public comment before adjourning the meeting, despite a public comment period appearing on the agenda.

On February 5, 2025, the Town, through its legal counsel, replied to the Petition (“Response”).  The Town included the affidavit of its FOIA coordinator who attests that the factual representations in this Response are true and correct to the best of her knowledge. The FOIA coordinator also states under oath that she attended this meeting in person and managed the videocasts to ensure the public’s ability to participate remotely.  In the Response, the Town states that the Climate Change Committee is an ad hoc advisory committee comprised of citizen volunteers to “develop plans and recommendations to the Town Council for a responsible strategy and resilience to rising sea levels and protect Dewey Beach in the face of climate change.”[1]  The Town alleges that the Committee considered the topic of a public education campaign at the meeting and reached a consensus to enlist the assistance of the Marketing Committee to disseminate educational materials and to appoint a liaison to coordinate efforts between the two committees. The Town argues that the Committee was not required to appoint such a position via a vote, but even it was required, FOIA does not prohibit this vote, as a general statement of the major issue, a public education campaign, appeared on the agenda.  The enlisting of help from the Marketing Committee and choosing a liaison were natural consequences of that discussion.  The Town contends that “[i]t is well within the scope of a duly noticed discussion of a public education campaign that partnering opportunities with existing town resources and measures to communicate between them would potentially be acted upon.”[2]

Regarding the Petition’s second claim, the Town argues that the Committee’s chair did not violate FOIA in adjourning the meeting without calling for public comment.  The Town provides sworn statements from the FOIA coordinator who attended the meeting and provided technical support, affirming that no member of the public, including you, attended the meeting either in person or through virtual means.  The Town maintains the public comment opportunity was appropriately noticed, and because the public was not present, no one was deprived of the opportunity to give public comment.

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]  A meeting of a public body must be open to the public, except in limited circumstances,[5] and 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]

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.”[9]   “[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item.”[10]  While the public body must provide enough information to alert the public that a subject will be undertaken, the agenda’s description need not provide for “every alternative that may take place with respect to a specific subject under consideration.[11]

In this case, the Committee’s agenda provided for several items related to the public education program, including  “6 month – 1 year plan of what the Committee intends to accomplish regarding information to be distributed to the public, including who should have oversight/approval” and “[d]iscuss and possibly vote to recommend to the Town Council a packet of materials to be disseminated to property owners via a public education campaign.”[12]  A member of the public interested in this subject matter of the public education campaign would be able to review this agenda and determine this topic would be under consideration, and this agenda need not specifically state all the alternatives that may arise from considering this topic, including a potential vote on a liaison to work on this campaign.  Accordingly, we do not find a violation of FOIA in this regard.

In addition, the Petition alleges that the Committee violated FOIA by adjourning the meeting without calling for public comment per the agenda.  “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.’”[13]  This public comment period must appear as an item on the agenda.[14]  The agenda in this case properly include a public comment period, and the Town provided statements, verified under oath by the FOIA coordinator monitoring the meeting, that no member of the public was present during the meeting either in person or virtually.  We find no violation of FOIA occurred, as a public body is not obligated to call for public comment when no member of the public is present.

CONCLUSION

For the foregoing reasons, we conclude that the Town’s Climate Change Committee did not violate FOIA at its January 18, 2025 meeting by voting on a liaison position for its public education campaign or by not calling for public comment when no member of the public was present at 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:       Fred A. Townsend, III, Town Solicitor

[1]           Response.

[2]           Id.

[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.

[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. & Envtl. 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]           Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017) (emphasis in original).

[10]         Del. Op. Att’y Gen. 10-IB12, 2010 WL 4154564, at *1 (Sept. 28, 2010).

[11]         Lechliter, 2017 WL 117596, at *2 (finding that an agenda stating a lease amendment would be presented and considered was sufficient notice that a vote on the lease amendment might occur).

[12]         Petition.

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

[14]         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.”).

 

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