Does Delaware FOIA require a town council to take up a particular issue at a public meeting before the town manager or solicitor can act on it?

Official title

20-IB21 7/22/2020 FOIA Opinion Letter to Councilmember Vicki Carmean re: FOIA Complaint Concerning the Town of Fenwick Island

Plain-English summary

Fenwick Island Councilmember Vicki Carmean filed a FOIA petition over an open pool bar with music and a liquor-license approval. Her complaint was that Town staff and officials, including the Town Manager and Town Solicitor, were sending letters and negotiating with the owner without bringing the matter to the full Council in a public meeting. She also questioned whether the Town Manager could unilaterally interpret the zoning code outside of a Council meeting.

The AG declined to find a FOIA violation. The opinion repeated a theme the AG has stated more than once: FOIA does not dictate when a public body must take up a matter, and it does not authorize the AG to second-guess who within a town has authority to send letters or interpret ordinances. Carmean's substantive concern, that the Town Manager and Solicitor lacked authority to act, was a question of municipal law, not FOIA.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, regulates two main things: access to public records and the conduct of meetings (notice, agendas, minutes, and executive-session limits). The AG's petition jurisdiction under 29 Del. C. § 10005 is bounded by what FOIA itself covers.

The opinion's core authority is a quotation from AG Opinion 17-IB09 (2017), which itself echoes 07-IB24 (2007): "FOIA does not determine when a public body must take up a matter of public business." If a Council never decides to put something on its agenda, FOIA does not force it to. If a town manager decides an issue without consulting the Council, FOIA does not adjudicate whether that delegation was lawful, only whether any meeting that did happen complied with notice/minutes/executive-session rules.

The petition here did not allege that an actual unannounced Council meeting took place. The complaint was that no Council meeting had been held at all. That is precisely the situation the AG opinion line addresses, and the result is the same: the AG petition process is not a tool to force a council to schedule a vote.

Common questions

Q: Why couldn't the AG address whether the Town Manager acted improperly?
A: The opinion states that the legality and appropriateness of those matters are outside the scope of Section 10005, quoting that "FOIA does not determine when a public body must take up a matter of public business." Whether Town officials should have discussed the pool bar at a public meeting, and whether they could speak on behalf of the Town, are questions the opinion treats as outside FOIA.

Q: What about the petitioner's belief that "all documents that express the will of the people must be backed up by minutes, notes, or other documentation"?
A: The opinion did not adopt that view. It limited its analysis to whether a FOIA violation occurred and concluded the petitioner's core concerns were outside the scope of FOIA.

Q: Was Carmean right that the underlying actions might have been improper?
A: The opinion offered no opinion on those allegations, stating they were outside the scope of Section 10005.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (FOIA petition process)
• Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247 (Apr. 25, 2017)
• Del. Op. Att'y Gen. 07-IB24, 2007 WL 4913657 (Dec. 27, 2007)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/07/22/20-ib21-7-22-2020-foia-opinion-letter-to-councilmember-vicki-carmean-re-foia-complaint-concerning-the-town-of-fenwick-island/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/07/Attorney-General-Opinion-No.-20-IB21.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB21
July 22, 2020
VIA EMAIL
Councilmember Vicki L. Carmean
Fenwick Island Town Council
[email protected]
RE:

FOIA Petition Regarding the Fenwick Island Town Council

Dear Councilmember Carmean:
We write in response to your correspondence alleging that the Fenwick Island Town
Council violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("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.
The Petition involves the approval of a liquor license for an outdoor pool bar with music.
The Petition alleges that multiple FOIA violations occurred, including certain unauthorized
correspondence sent by the Town Manager and other staff about this matter, certain unauthorized
statements by another Councilmember on behalf of the Town Council, certain Town officials'
negotiations with the owner, and the Town Manager's unilateral decision to interpret the Code
outside of a Council meeting. The Petition states in part, as follows:
Once again, I am not filing this complaint with the expectation that the FOIA Office
will rule on either the interpretation of the Code of the Town of Fenwick Island or
whether a liquor license should be issued. My concern is that I believe the Delaware
Open Meetings laws have been violated by completely circumventing the
prerequisite for a Town Council meeting, discussion, and a vote on a Town
resolution to allow an open pool bar with music/live entertainment which appears
to be in contradiction to our zoning ordinances. To what extent do the Town
Manager and Town Solicitor have the authority to send legally binding letters

setting forth a new interpretation of the Code without reviewing these ideas directly
with the Council Members first in a public or even executive setting and receiving
written authority to alter such ordinances and/or submitting the new interpretation
to the public via two readings and a vote?1
The Petition also states your belief that "under FOIA, all documents that express the will
of the people must be backed up by minutes, notes, or other documentation as to who made the
decision and why."2
The crux of the Petition is that the Town Council did not discuss in a public meeting the
approval of the open pool bar and that certain Town officials made statements on behalf of the
Town, allegedly without authority to do so. We offer no opinion on those allegations as the legality
and appropriateness of such matters are outside the scope of Section 10005. "To be clear, FOIA
'does not determine when a public body must take up a matter of public business.'"3 As such, the
questions of whether the Town officials should have discussed the open pool bar at a public
meeting and whether Town officials appropriately spoke on behalf of the Town are matters outside
the scope of FOIA.
Based on above, we find that the Town has not violated FOIA as alleged.
Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

Mary Schrider-Fox, Esq., Town Solicitor

1

Petition.

2

Id.

3

Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 4 (Apr. 25, 2017) (quoting Del. Op.
Att'y Gen. 07-IB24, 2007 WL 4913657, at 3 (Dec. 27, 2007)).
2