PRINT VERSION: Attorney General Opinion No. 25-IB41

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

 Attorney General Opinion No. 25-IB41

 August 7, 2025 

VIA EMAIL

James Lisehora

jlisehora@gmail.com

RE:     FOIA Petitions Regarding the City of Rehoboth Beach

Dear Mr. Lisehora:

We write in response to your correspondence alleging that the City of Rehoboth Beach violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  Your first correspondence was accepted on July 11, 2025 (“First Petition”), and your second correspondence was accepted on July 17, 2025 (“Second Petition”).  We treat this correspondence as a combined Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur.  As discussed more fully herein, we determine that the City violated FOIA by failing to maintain the minutes for the June 16, 2023 meeting and make them available to you.  We find no further violations with respect to the remaining claims.

BACKGROUND

On June 9, 2025, you submitted a FOIA request seeking the “[m]inutes from the June 16, 2023 Regular Meeting of the Mayor and Commissioners” and “an updated zoning map showing the current zoning of two parcels of land that were rezoned by unanimous vote of the Mayor and Commissioners during their Regular Meeting on June 16, 2023.”[1]  The First Petition followed, alleging that the City failed to respond to this request.

The City, through its counsel, submitted a response to this First Petition, stating that the delay was the result of an unintentional, administrative oversight.  The City answered the two requests in its Response. For the first item, the City’s FOIA coordinator attests that the minutes for the June 16, 2023 meeting have been prepared and will be presented at the upcoming August meeting for approval.  The City states that the minutes will then be provided to you.  For the second item in your request, the City’s counsel stated that there are no responsive records, as the most recent zoning map is dated 2010.

You submitted the Second Petition alleging that while the agenda and video of the June 16, 2023 meeting were on the website, the minutes from the June 16, 2023 meeting were not posted on the City’s website, as required.[2]  The City, through its counsel, submitted a response, which included the affidavit reiterating that the minutes from the June 2023 meeting will be presented for approval by the Mayor and Commissioners at the August 2025 meeting and thereafter provided to you.

DISCUSSION

Delaware’s FOIA law “was enacted to ensure governmental accountability by providing Delaware’s citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities.”[3]  The public body has the burden of proof to justify its denial of access to records and to otherwise demonstrate its compliance with FOIA.^[4]  In certain circumstances, a sworn affidavit may be required to meet that burden.^[5]

The First Petition alleges that the City did not respond to your FOIA request within the statutory timeframes.  The City acknowledges its failure to timely respond.  As you have now received the response to the second item seeking the updated zoning map, the timeliness claim with respect to the second item is moot.[6]

Meeting minutes, however, are a different matter.  The failure to provide you with the minutes from the June 16, 2023 meeting for inspection and copying violates the open meeting provisions of the FOIA law.  While the City is not required, as alleged in the Second Petition, to post the meeting minutes online, the City must “maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record.”[7]  As the minutes are not available for this meeting held approximately two years ago, the City is in violation of Section 10004(f).  We recommend that the City’s Mayor and Commissioners approve the June 16, 2023 meeting minutes, as planned, and make them available to you.

CONCLUSION

For the reasons set forth above, we conclude that the City violated FOIA by failing to maintain the minutes for the June 16, 2023 meeting and make them available to you.  We find no further violations with respect to the remaining claims.

Very truly yours,

/s/ Dorey L. Cole

_________________________

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

__________________________

Patricia A. Davis

State Solicitor

cc:       Lisa Borin Ogden, City Solicitor

[1]           First Petition.

[2]           The Second Petition included multiple additional claims, which this Office previously dismissed in its July 18, 2025 correspondence.

[3]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

[4]           29 Del. C. § 10005(c).

[5]           Judicial Watch, Inc.,267 A.3d at 1008-1012.

[6]           See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *13 (Del. Ch. May 19, 1994); Del. Op. Att’y Gen. 18-IB30, 2018 WL 3118433, at *2 (Jun. 7, 2018); Del. Op. Att’y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)).

[7]           29 Del. C. § 10004(f).

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