If a Delaware county council posts its meeting notice at 5:35 PM after the building closes, does that violate FOIA's seven-day rule?
Official title
19-IB57 10/24/2019 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council
Plain-English summary
Sussex County Council meets weekly. Its September 17 meeting did not end until 4:45 PM, after which staff finalized the September 24 agenda and posted it at the Administration Building (which closes at the end of the business day) and online at 5:35 PM. The next morning, September 18, Council twice amended the agenda, each time stating the reason ("to address a matter which arose after the initial posting of the agenda but before the start of the Council meeting").
Daniel Kramer petitioned, raising two arguments. First, that posting at 5:35 PM, after the building closed, effectively meant the public couldn't see it until September 18, blowing the seven-day requirement. Second, that Council failed to give a sufficient reason when it amended the agenda twice.
The AG rejected both. On the seven-day rule: FOIA does not require posting before the close of business. The Court of Chancery has explicitly cautioned against reading FOIA as a series of hyper-technical traps that frustrate public bodies' ability to do public business without adding meaningful citizen oversight. A weekly-meeting body that ends its prior meeting in the late afternoon would have to restructure its operations to post before the building closes, an outcome FOIA does not require.
On the amendments: the AG found that even if the seven-day window did include September 18, the Council provided the reason FOIA requires under § 10004(e)(5) for delayed agenda items. The reason ("address a matter which arose after the initial posting") plus the Council's later explanation (a personnel resignation that occurred September 18, and a Seaford grant request with a tight federal deadline) were sufficient. FOIA does not require a detailed explanation, only a reason and a determination that the items could not be deferred.
The opinion is also notable for a footnote correcting Council's own legal theory: Council had argued it could amend the agenda without explanation up until seven days before the meeting. The AG rejected that, citing § 10004(e)(5) explicitly: any amendment after the initial notice posting requires a stated reason, regardless of whether the seven-day window has expired.
Currency note
This opinion was issued in 2019. 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 the seven-day clock start at the moment of posting, or end of business day?
The opinion treats it as the moment of posting, including online posting. Council posted online at 5:35 PM on September 17 for a September 24 meeting, and the AG found that compliant. The opinion does flag that requiring weekly-meeting bodies to post before close of business would unreasonably frustrate FOIA's purpose.
Why did the AG reject the "hyper-technical" argument?
Citing the Court of Chancery's Lechliter decision, the AG underscored that FOIA's purpose is to keep public business open, not to set up procedural snares. Where a public body is acting in good faith to conduct its routine business and the public has a meaningful opportunity to engage, technical timing failures alone do not amount to a violation absent an intent to frustrate the statute.
What does FOIA require when a public body amends its agenda?
Under § 10004(e)(5), public bodies must amend at least six hours before the meeting and must briefly state the reason on the amended agenda. The reason need not be detailed. The AG's office reviews whether the reason is sufficient and whether the matter could have been deferred to a later meeting.
Was Council right that it could amend without explanation if more than seven days remained?
No, and the opinion calls this out in a footnote. § 10004(e)(5) requires an explanation for any delay in posting a notice item after the initial notice, full stop. There is no rolling seven-day window in which silent amendments are allowed.
Background and statutory framework
Delaware FOIA's open-meeting rules at 29 Del. C. § 10004(e) build a layered notice scheme:
- (e)(2): Regular meetings require seven days' notice, including the agenda.
- (e)(4): Notice must be posted conspicuously at the principal office plus electronically.
- (e)(5): An agenda may be added or amended after initial notice if at least six hours before the meeting and with the reason briefly stated. The AG's office reviews sufficiency case by case.
The Court of Chancery's 2017 Lechliter decision is the authoritative rejection of "hyper-technical" FOIA enforcement. The AG's office applies it as a thumb-on-the-scale toward purposive compliance over rigid clockwork.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10004(e)(2), (e)(4), (e)(5)
- Lechliter v. Del. Dep't of Elections of Nat. Res. & Environ. Contr., 2017 WL 117596 (Del. Ch. Jan. 12, 2017)
- Att'y Gen. Op. 06-IB08 (Apr. 6, 2006)
- Att'y Gen. Op. 03-IB22 (Oct. 6, 2003)
- Att'y Gen. Op. 08-IB06 (Mar. 27, 2008)
- Att'y Gen. Op. 02-IB22 (Sept. 13, 2002)
Source
- Landing page: https://attorneygeneral.delaware.gov/2019/10/24/19-ib57-10-24-2019-foia-opinion-letter-to-mr-daniel-kramer-re-foia-complaint-concerning-sussex-county-council/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/10/Attorney-General-Opinion-No.-19-IB57.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 19-IB57
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 19-IB57
October 24, 2019
VIA EMAIL
Daniel J. Kramer
8041 Scotts Store Rd
Greenwood, DE 19950
RE: September 27, 2019 FOIA Petition Regarding Sussex County Council
Dear Mr. Kramer:
We write in response to your September 27, 2019 correspondence alleging that Sussex County Council's (the "Council") agenda for its September 24, 2019 Council Meeting violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a petition for determination pursuant to 29 Del. C. § 10005(e) regarding whether the Council violated FOIA ("Petition"). We invited the Council to submit a written response to the Petition. We received the Council's response ("Response Letter") on October 11, 2019. For the reasons set forth below, we conclude that the Council did not violate FOIA as alleged.
BACKGROUND
The Council meets on a weekly basis. On September 17, 2019 at 5:35 pm the Council posted a notice and agenda for its September 24, 2019 meeting. The Notice was posted outside the County Council Administrative Office in the County's Administration Building and online on the Council's website at sussexcountyde.gov/agendas-minutes. [1] On September 18, 2019, the Council amended the agenda for its September 24 th meeting twice. The amended agendas each stated that they were amended and included a footnote explaining that the amendment was "to address a matter which arose after the initial posting of the agenda but before the start of the Council meeting."
POSITIONS OF THE PARTIES
In your Petition, you allege that the Council violated FOIA by (1) effectively not posting its notice and agenda for the September 24 th meeting within seven days of the meeting because it was posted at 5:35 pm, after the County's Administration Building was closed to the public; and (2) not giving a reason for amending the agendas after their initial posting. Council responds first, that it holds weekly meetings on Tuesdays. It could not finalize its agenda for the September 24 th meeting until its September 17 th meeting was over and that meeting did not conclude until 4:45 pm, after business hours. Additionally, FOIA has no requirement that notices be posted prior to the end of the business day. Second, the Council argues that seven days in advance of September 24 th would be September 18 th , not September 17 th , and since the Council made both of its amendments on September 18 th they were not late, and therefore did not require an explanation as to why they were delayed. Even if seven days in advance of September 24 th was September 17 th and not the 18 th , the Council did give a reason as required by 29 Del. C. § 10004(e) for amending the original notice.
DISCUSSION
Delaware's FOIA provides that "all public bodies shall give public notice of their regular meetings … at least 7 days in advance thereof." [2] "Public notice … shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting…" [3] The notice shall include an agenda, but "[w]hen 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." [4]
The Council's posted notice of its September 24 th meeting adhered to the requirements of FOIA because it was posted on September 17 th , seven days in advance of the meeting, at the County's Administration Building, which is the principal office of the public body. Notice was also posted online. We understand your argument that by posting notice in the County's Administration Building after it was closed to the public, members of the public who received notice of the meeting through that posting would not have been able to view it until September 18 th . However, "the purpose of FOIA is to ensure that public business is done in the open, so that citizens can hold public officials accountable. The purpose of FOIA is not to provide a series of hyper-technical requirements that serve as snares for public officials, and frustrates their ability to do the public's business, without adding meaningfully to citizens' rights to monitor that business. [5] Requiring a public body who meets on a weekly basis to reorganize its meeting schedule to meet early enough in the day on a weekday to conclude their business and get an agenda out prior to the end of business day would unnecessarily frustrate the Council's ability to do the public's business and is not mandated by FOIA. Absent evidence of an intent to frustrate FOIA's purposes, we conclude based upon the facts before us that no such intent was present.
The Council amended its agenda for the September 24 th meeting twice, both times on September 18 th . [6] You argue that the Council failed to give a reason for why the two items added to the agenda were not on the initial agenda. The record does not support your position. Council's provided reason was that the agenda was amended "to address a matter which arose after the initial posting of the agenda, but before the start of the Council meeting." [7] We interpret your complaint to challenge the sufficiency of Council's reason.
FOIA allows a public body flexibility to amend its agenda when items come up suddenly that cannot be deferred to a later meeting. [8] Public bodies need to give a reason for why the item was not included in the original agenda, but the reason does not need to be detailed. [9] Our Office will review the sufficiency of the reason and whether the delayed agenda item could have been postponed in order to give the public full notice. [10]
The Council's amended agenda to its September 24 th meeting stated that it was amended to "address a matter which arose after the initial posting of the agenda but before the start of the Council meeting." In response to your petition, the Council further explained the amendments, why they were not included in the original agenda and why they could not wait until the next Council meeting. [11] The first amendment was to discuss a personnel board appointment. It was not included in the original agenda because the person filling the role did not resign from the position until September 18 th . It was necessary for the Council to address at its September 24 th meeting because ongoing personnel matters required the attention of a full Personnel Board. The second amendment was to discuss the City of Seaford – Utility Project Acceleration Request. The Council received a letter from the City of Seaford on September 18 th . The City of Seaford was seeking grant funding and the grant request needed to be submitted by September 27, 2019, therefore there was not time to wait until the following meeting of the Council. We are satisfied that both amendments addressed items that could not be delayed to a later meeting and that there is no evidence that you or any member of the public was harmed by the delay.
CONCLUSION
For the reasons discussed above, it is our determination that the Council did not violate FOIA as alleged.
Very truly yours,
/s/ Carla A.K. Jarosz
Carla A.K. Jarosz
Deputy Attorney General
APPROVED BY:
/s/ Aaron Goldstein
Aaron Goldstein, State Solicitor
cc:
J. Everett Moore, Esquire (via email)
[1] Response Letter.
[2] 29 Del. C. § 10004(e)(2).
[3] 29 Del. C. § 10004(e)(4).
[4] Id.
[5] Lechliter v. Del. Dep't of Elections of Nat. Res. & Environ. Contr. , 2017 WL 117596 at *2 (Del. Ch. Jan. 12, 2017).
[6] The Council argued in its Response that it should be able to amend its agenda without any explanation up until seven days prior to the date of the meeting. This interpretation is not supported by statute. 29 Del. C. § 10004(e)(5) requires an explanation for any delay in posting an agenda after the initial posting of the notice regardless of when that notice is posted. As such, the Council was required to provide the public with a reason for each of the amendments it made to the agenda for its September 24 th meeting.
[7] Response Letter.
[8] Att'y Gen. Op. 06-IB08 (Apr. 6, 2006) quoting Att'y Gen. Op. 03-IB22 (Oct. 6, 2003).
[9] 29 Del. C. § 10004(e)(5) and see also Att'y Gen. Op. 08-IB06 quoting Atty' Gen Op. 02-IB22 at 6 (September 13, 2002).
[10] Att'y Gen. Op. 08-IB06 (Mar. 27, 2008).
[11] Response Letter.