Does a Delaware town have to prove its electronic meeting notice posted on time, or just the physical posting?

Official title

17-IB50 10/6/2017 FOIA Opinion Letter to Ms. Dell Tush re: FOIA Complaint Concerning The Town of Dewey Beach

Plain-English summary

Dell Tush petitioned the AG alleging the Town of Dewey Beach failed to give seven days' notice of meetings the Town Commissioners had scheduled for September 13, 14, 15, 20, and 22, 2017. The Town canceled the September 14, 15, and 20 meetings, mooting those claims, and the AG had already ruled in a companion petition (Del. Op. Att'y Gen. 17-IB49) that the September 13 meeting was, at most, a technical notice violation requiring no remedy. That left only the September 22 meeting notice to decide.

The AG found no violation there: the Town had posted notice at its principal office at least seven days before the meeting, which satisfies FOIA's posting requirement. Both sides had focused heavily on when the Town posted notice electronically, but the AG explained that timing was irrelevant, because Delaware FOIA does not currently require towns and other municipal or county public bodies to post meeting notice electronically at all. That electronic-posting mandate applies only to non-county, non-municipal public bodies and to executive branch state agencies, which must use a designated State of Delaware website.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does a Delaware municipality have to post its meeting notices online?

Not under this opinion's reading of the statute as it stood in 2017. The AG explained that FOIA's electronic-posting requirement applied only to non-county, non-municipal public bodies and to state executive-branch agencies, not to towns like Dewey Beach, even though the AG encouraged the practice for transparency.

What counts as valid physical posting of a Delaware meeting notice?

Conspicuous posting at the principal office of the public body holding the meeting, or at the place its meetings are regularly held, at least seven days before a regular meeting. The AG found Dewey Beach's posting at its Town Council office satisfied this requirement for the September 22 meeting.

If a town also posts notice online, does the timing of that online posting matter for FOIA compliance?

Not according to this opinion, at least for municipalities. The AG specifically declined to weigh the timing of the Town's electronic posting because FOIA did not require it to post electronically in the first place.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires public notice of a public body's meetings, including conspicuous posting at the body's principal office or regular meeting place. 29 Del. C. § 10004(e)(4) separately requires electronic posting on a designated state website, but only for non-county and non-municipal public bodies, and for executive branch state agencies. Municipalities such as the Town of Dewey Beach fall outside that electronic-posting mandate, so their FOIA compliance for notice purposes turns on the physical posting requirement alone.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10004(e)(4) (physical posting requirement; electronic posting required only for non-county/non-municipal bodies and executive branch agencies)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/10/09/17-ib50-1052017-foia-opinion-letter-ms-dell-tush-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/10/Attorney-General-Opinion-No.-17-IB50.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 17-IB50

October 6, 2017

VIA EMAIL

Ms. Dell Tush
[email protected]

RE: September 18, 2017 FOIA Correspondence Regarding the Town of Dewey
Beach

Dear Ms. Tush:

We write regarding your correspondence, received on September 18, 2017, alleging that
the Town of Dewey Beach (the "Town") violated Delaware's Freedom of Information Act, 29 Del.
C. §§ 10001-10007 ("FOIA"). Specifically, you allege that the Town violated FOIA by failing to
post notice of meetings which the Town Commissioners intended to hold on September 13, 14,
15, and 22 at least seven days in advance thereof. You also appear to allege that the Town violated
FOIA's notice requirements in connection with a meeting that the Town scheduled for September
20, 2017. We treat your correspondence as a petition for determination, pursuant to 29 Del. C. §
10005(e), of whether the Town violated FOIA ("Petition"). We have reviewed your Petition, the
Town's September 22, 2017 response, and the affidavits submitted by the Town on September 27,
2017. Our determination with respect to each of your FOIA allegations is set forth below.[1]

As an initial matter, we have determined that your allegations concerning the meetings
scheduled for the September 14, 15 and 20 are now moot, as the Town cancelled those meetings
in advance thereof. Additionally, we have already determined, in connection with another FOIA
petition, that the Town's conduct regarding timely notice of its September 13, 2017 meeting
amounted to, at most, a technical violation of the statute for which no remediation is warranted.[2]
As such, the only remaining issue for our consideration concerns the September 22, 2017 meeting
notice.

Based upon our review of the record, it is our determination that the Town did not violate
FOIA by failing to provide timely notice of its September 22, 2017 meeting. Indeed, we are
satisfied that the Town posted notice of the September 22, 2017 meeting at the principal office of
the Town Council least seven days in advance thereof.[3]

Very truly yours,

Michelle E. Whalen
Deputy Attorney General

Approved:

Aaron R. Goldstein
State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email)
Frederick A. Townsend, III (via email)

[1] We decline to address your remaining claims, as they fall outside the scope of FOIA.

[2] See Del. Op. Att'y Gen. 17-IB49 (Sept. 29, 2017).

[3] See 29 Del. C. § 10004(e)(4) ("Public notice required by this subsection shall include, but
not be limited to, conspicuous posting of said notice at the principal office of the public body
holding the meeting, or if no such meeting exists at the place where the meetings of the public
body are regularly held. . . ."). While both your petition and the Town's response (including
affidavits) place significant emphasis on electronic posting of said notice, we note that the date
and time of electronic notice is not relevant to this determination. Indeed, although we certainly
encourage the practice in the interest of transparency, we note FOIA does not currently require the
Town to post electronic notice of its meetings. See id. ("In addition [to conspicuous posting of
physical notice], for all noncounty and nonmunicipal public bodies, public notice required by this
subsection shall include, but not be limited to, electronic posting on a designated State of Delaware
website, approved by the Registrar of Regulations by May 1, 2013, which shall be accessible to
the public. In addition, all public bodies in the executive branch of state government that are subject
to the provisions of this chapter shall electronically post said notice to the designated State of
Delaware website approved by the Secretary of State.") (emphasis added).