PRINT VERSION: Attorney General Opinion No. 25-IB60

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

 Attorney General Opinion No. 25-IB60

 December 8, 2025

 VIA EMAIL

John Reiss

jlreiss@comcast.net

RE:     FOIA Petition Regarding the Town of Blades

Dear Mr. Reiss:

We write in response to your correspondence, alleging that the Town of Blades violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat this 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.  As discussed more fully herein, we determine that the Town did not violate FOIA by failing to convey in its agenda that a “first reading” of a resolution was planned for the Town Council’s October 27, 2025 special meeting.

BACKGROUND

The Town Council held a special meeting on October 27, 2025 with two agenda items: “New Tax Rate” and an executive session for personnel matters.[1]  The Petition alleges that the Town violated FOIA by failing to give proper notice to the public that a first reading of a resolution to raise taxes was planned for this meeting.  The resolution was entitled “A Resolution Adopting the Change of Real Estate Property Tax Rate.”[2] The Petition states that a second reading of this resolution was scheduled for a later meeting.

DISCUSSION

FOIA is intended to ensure that public business is done in the open, “so that . . . citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy.”[3]  FOIA requires a meeting of a public body to be open to the public, except in limited circumstances.^[4] In any action brought under Section 10005, the public body has the burden of proof to demonstrate compliance with FOIA.[5]

This Office’s authority is limited to determining alleged violations of the FOIA statute.[6]   The Petition claims that the Town Council violated FOIA by failing to provide notice that a “first reading” of a resolution to raise taxes would occur at the meeting.  However, FOIA does not mandate a process for noticing first and second readings of legislation; this municipal issue falls outside the scope of this Opinion.

Rather, FOIA requires sufficient notice be provided in the meeting agenda for the items intended to be discussed.  An agenda for a public meeting must include a “general statement of the major issues” which a public body expects to discuss^[7] and must be worded in “plain and comprehensible language.”^[8]  “In order that the purpose of the agenda requirement be served, [a meeting item] 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].”^[9]  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.”[10]  We determine that this item, “New Tax Rate,” provided adequate notice to a citizen with an intense interest in the tax rate change that the Council intended to address this subject at this meeting.  Thus, we find no violation of FOIA in this regard.

CONCLUSION

Based on the foregoing, we conclude that the Town did not violate FOIA by failing to convey in its agenda that a “first reading” of a resolution was planned for the Town Council’s October 27, 2025 special 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:       Michael R. Smith, Attorney for the Town of Blades

[1]           Petition.

[2]           Id.

[3]           29 Del. C. § 10001.

[4]           29 Del. C. § 10004.

[5]           29 Del. C. § 10005(c).

[6]           29 Del. C. § 10005(e) (“Any citizen may petition the Attorney General to determine whether a violation of [FOIA] has occurred or is about to occur. “); see e.g., Del. Op. Att’y Gen. 20-IB28, 2020 WL 7663557, at *2 (Nov. 9, 2020) (“These matters of municipal law, concerning the authority of the Council President or Mayor, are outside the scope of the FOIA statute, and thus, we make no determination regarding these issues.”).

[7]           29 Del. C. § 10002(a).

[8]           Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *8 (Del. Ch. May 19, 1994).

[9]           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)).

[10]         Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017) (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).

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