PRINT VERSION: Attorney General Opinion No. 25-IB24

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB24

 April 11, 2025

VIA EMAIL

Retired State Representative John Kowalko, Jr.

John Flaherty, Director

Delaware Coalition for Open Government

jdf0000@aol.com

RE:     FOIA Petition Regarding the Senate Judiciary Committee, Delaware General Assembly

Dear Petitioners:

We write in response to your correspondence alleging that the Senate Judiciary Committee of the Delaware General Assembly 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 the Committee has not violated FOIA as alleged.

BACKGROUND

The Senate Judiciary Committee held a public meeting on March 12, 2025 to discuss Senate Bill 21.  Approximately three hours before the meeting, a revised version was filed to replace Senate Bill 21.  This Petition followed, alleging that this change to the agenda had to be made at least six hours before the meeting and a reason for the delay must be noted in the agenda.  The Petition alleges that the Committee violated FOIA, because it did neither.

On March 24, 2025, the Director of the Division of Legislative Services replied to the Petition on the Committee’s behalf (“Response”), asserting that the “Committee maintains that there can be no violation of FOIA in this case because FOIA does not apply to the Committee as it relates to the sufficiency of an agenda.”[1]  The Committee states that as it is part of the General Assembly, it is not bound by the agenda requirements in the FOIA statute, pointing to the express exemption in 29 Del. C. § 10004(e)(1) that excludes the General Assembly from FOIA’s meeting notice requirements.  The Committee asserts that this exception is consistent with case precedent that has found the General Assembly has the sole authority to make rules to determine and govern its own proceedings.

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 those contained in Section 10004(e).  This section requires a public body to give advance notice of a public meeting and to post this notice with an agenda, which is defined to include “the major issues expected to be discussed” and a “statement of intent to hold an executive session and the specific ground or grounds therefor.”[4]

However, the General Assembly is specifically exempted from the meeting notice requirements in Section 10004(e), including the requirement to post a meeting agenda.[5]  As the Committee is part of the General Assembly, we find that the Committee is also exempt from the requirement to post an agenda.  The Committee’s March 12, 2025 agenda therefore did not violate FOIA.

CONCLUSION

We conclude that the Committee’s March 12, 2025 meeting agenda did not violate FOIA, as the General Assembly is exempted from FOIA’s meeting notice requirements.

Very truly yours,

/s/ Dorey L. Cole

____________________________

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

_______________________________

Patricia A. Davis

State Solicitor

cc:       Mark J. Cutrona, Esq., Director, Division of Legislative Services

[1]           Response.

[2]            29 Del. C. § 10005(c).

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

[4]           29 Del. C. §§ 10002(a), 10004.

[5]           29 Del. C. § 10004(e)(1) (“This subsection concerning notice of meetings does not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health, or safety, or to the General Assembly.”).

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