PRINT VERSION: Attorney General Opinion 25-IB16

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB16

 March 05, 2025

VIA EMAIL

Earle Dempsey

earle.dempsey@firststateinspection.com   

RE:     FOIA Petition Regarding the Delaware Board of Electrical Examiners, Division of Professional Regulation, Department of State

Dear Mr. Dempsey:

We write in response to your correspondence alleging that the Delaware Board of Electrical Examiners of the Division of Professional Regulations, Department of State 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 Board violated FOIA by failing to timely post the agenda for its February 5, 2025 meeting.

BACKGROUND

The Board of Electrical Examiners scheduled a meeting for February 5, 2025.  Early that morning, you emailed the Board and its counsel to point out that the agenda was still missing from the public notice for the meeting.  Later that morning, a Board employee acknowledged the missing agenda and subsequently corrected the error by posting the agenda, but the posting occurred only thirty minutes prior to the meeting.  This Petition followed, alleging that the delayed posting of the agenda was noncompliant with FOIA, and even though the Board was made aware of this error, the meeting continued as scheduled that day.

On February 13, 2025, the Board, through its legal counsel, replied, acknowledging that the Petition was meritorious (“Response”).  The Board asserts that although it created an agenda for this meeting that was circulated to Board members and counsel, the Board neglected to create the link between the State of Delaware public meeting calendar and the meeting agenda.  The Board’s counsel explains he did not have the opportunity to review or investigate the allegations in your email prior to the start of the meeting. The Board emphasizes the error was unintentional and public access to Board meetings is of the utmost importance.  To remediate the violation, the Division Director ordered retraining of employees acting as board liaisons to ensure compliance with FOIA obligations in the future.  The Director also instructed that the full agenda of this February 5, 2025 meeting be reposted for public review prior to the Board’s next meeting in March, which will allow the Board to consider, for ratification, its February meeting actions during the March Board meeting and allow public comment regarding any of those items.

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]

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.[4]  “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.”[5]  As the Board acknowledges, the agenda for the February 5, 2025 meeting was not timely posted.  We find a violation on this basis and recommend that the Board implement its proposed plan to timely repost this meeting agenda and ratify the items at a future meeting that is fully compliant with FOIA.

CONCLUSION

For the foregoing reasons, we conclude that the Board violated FOIA by failing to timely post the agenda for its February 5, 2025 meeting.

Very truly yours,

__________________________________

Daniel Logan

Chief Deputy Attorney General

cc:        A. Zachary Naylor, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General

[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]           29 Del. C. § 10004(e)(2).

[5]           29 Del. C. § 10004(e)(6).

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