Does Sussex County violate FOIA when its Industrial Revenue Bond Committee posts hearing notices physically on the Administration Building without strong electronic notice?
Official title
21 – IB14 06/30/2021 FOIA Opinion Letter to Maria Payan, et al. re: FOIA Complaint Concerning Sussex County
Plain-English summary
A coalition of environmental and civil-rights advocates (six petitioners across multiple organizations) challenged Sussex County's process for approving Industrial Revenue Bonds for a gas-production facility in Seaford. The County's Industrial Revenue Bond Committee held its public hearing on March 17, 2021, with no public attendance despite over 275 comment letters and a letter from 32 public-interest groups about the underlying conditional-use application. The County Council approved the Bond application on April 27, 2021.
The petition raised several alleged FOIA violations: inadequate notice for the March 17 hearing (no citizens attended), the agenda was electronically posted with vague titles, the application itself was not on the website, the County website did not list the Committee, and the April 27 Council meeting agenda was not timely posted electronically.
The AG sided with the County on every count.
The County's evidence: physical postings of notice and agenda at the County Administration Building seven days in advance for both meetings, supported by sworn affidavits from staff (March 10 at 9:00 AM for the Committee, April 20 at 4:20 PM for the Council). Electronic postings were also made (March 10 at 9:51 AM for Committee, April 21 morning for Council).
The decisive statutory point: § 10004(e)(4) requires electronic posting only for non-county and non-municipal public bodies. Counties are explicitly excluded. Sussex County's electronic posting was a courtesy, not a FOIA obligation. Even if the electronic posting had glitches, that would not be a FOIA violation.
On the conditional-use hearing held the day before: FOIA does not require the County to inform the public about other upcoming hearings during a separate hearing. The Committee members who attended the conditional-use hearing had no FOIA duty to mention the next-day Bond hearing.
On the lack of public attendance: FOIA cares about whether notice was posted, not whether it succeeded in drawing a crowd. The opinion cites 19-IB57 (after-hours notice posting was sufficient).
On the 9 Del. C. § 7002 newspaper-publication argument and other non-FOIA statutory claims: outside the AG's FOIA-petition authority, citing 18-IB50 and 96-IB28.
Currency note
This opinion was issued in 2021. 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
Are counties really exempt from FOIA's electronic-posting requirement?
Yes. § 10004(e)(4) reads electronic posting as required only for "noncounty and nonmunicipal public bodies." Counties and municipalities can post online as a courtesy, but FOIA does not compel it. State agencies and most boards must post electronically.
Does no public attendance count as a FOIA violation?
No. The notice obligation is about posting, not about outcome. If a public body posts notice at the right place at the right time, no-shows do not retroactively make the meeting non-compliant.
Could the County have done a better job informing affected residents?
Almost certainly. The opinion does not engage that as a FOIA question. The petitioners' broader civic complaint, that 275 comment letters on the conditional-use application generated zero attendance at the related Bond hearing the next day, may speak to community-engagement practice but does not violate FOIA itself.
What is an Industrial Revenue Bond?
A municipal bond issued to finance private industrial projects. Approval typically requires a federal-tax-related public-hearing process under the Internal Revenue Code, alongside any state-law procedural requirements. The Internal Revenue Code rules sit outside FOIA.
What about 9 Del. C. § 7002 (newspaper-publication)?
That is a separate statutory layer for county notices and not part of FOIA. The AG's office does not opine on it through the FOIA petition channel. A separate court action would be the right vehicle.
Background and statutory framework
29 Del. C. § 10004(e) is the principal FOIA notice provision. Key features:
- (e)(2): Seven days' advance notice for regular meetings
- (e)(4): Conspicuous physical posting at the principal office. Electronic posting required only for non-county and non-municipal public bodies, and for executive-branch state public bodies.
- (e)(5): Six-hour amendment window with stated reason
The Sussex County Industrial Revenue Bond Committee meets infrequently (last meeting before this one was 2016). Its principal office is functionally the County Administration Building, where the Committee's hearing was held.
The opinion cites 19-IB57 (the September 2019 case where Sussex County's after-hours notice posting at 5:35 PM was found compliant). Both cases reflect the AG's permissive reading of FOIA's notice rules for public bodies operating on routine schedules.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10001 (purpose)
- 29 Del. C. § 10004(e)(1), (e)(2), (e)(4)
- 29 Del. C. § 10005, § 10005(e)
- 9 Del. C. § 7002 (referenced as outside FOIA scope)
- Del. Op. Att'y Gen. 19-IB57, 2019 WL 6047160 (Oct. 24, 2019)
- Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015765 (Oct. 12, 2018)
- Del. Op. Att'y Gen. 96-IB28, 1996 WL 517455 (Aug. 8, 1996)
Source
- Landing page: https://attorneygeneral.delaware.gov/2021/06/30/21-ib14-07-01-2021-foia-opinion-letter-to-maria-payan-et-al-re-foia-complaint-concerning-sussex-county/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/07/Attorney-General-Opinion-No.-21-IB14.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. 21-IB14
June 30, 2021
VIA EMAIL
Maria Payan
Senior Regional Representative
Socially Responsible Agricultural Project
[email protected]
Greg Layton
Delaware Organizer
Food & Water Watch
[email protected]
Kerri Evelyn Harris
Executive Director
Delaware Alliance For Community Advancement
[email protected]
Jay Monteverde
US Environmental Justice Program Director
Namati
[email protected]
Joseph Meyer, Authorized Representative
Sussex Health & Environmental Network
[email protected]
Charito Calvachi-Mateyko
Coordinator
Delaware Civil Rights Commission
[email protected]
RE: FOIA Petition Regarding Sussex County
Dear Petitioners:
We write in response to your correspondence alleging that Sussex County 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. As discussed herein, we determine that the County has not violated FOIA as alleged in the Petition.
BACKGROUND
This Petition challenges the process by which the County Council and the County's Industrial Revenue Bond Committee approved the application for a series of Industrial Revenue Bonds for a gas production facility in Seaford, Delaware ("Facility"). To review the Bond application, the Industrial Revenue Bond Committee held a public hearing on March 17, 2021; the petitioners state that no members of the public attended. The Council then met on April 27, 2021 and approved the Bond application. The Petition alleges that the Council and the Committee violated several notice and public involvement requirements in this process.
The Petition alleges that the Committee's March 17, 2021 public hearing to consider the Bond application had multiple deficiencies. The Petition contends that the Committee did not provide reasonable notice of the March 17, 2021 hearing, as evidenced by the fact that not one citizen appeared at the hearing, despite significant public opposition in other hearings related to the Facility. In fact, the petitioners assert over 275 comment letters and a letter to the Governor signed by 32 public interest groups asking for his intervention were sent to the County in opposition to the Facility's conditional use application; this conditional use hearing was held on March 16, 2021, the day before the Committee hearing. In addition to alleging the County failed to follow the state law requirements in 9 Del. C. § 7002 for newspaper publication, the Petition maintains that the County's electronic posting of the hearing notice was deficient. After first noting that no notice on the website was available when the petitioners became aware the hearing had taken place, the petitioners assert that the electronic notice did not state it was a meeting or hearing in the title of the meeting, that it did not post specific information, such as the application, to allow the public to "meaningfully engage with the Committee or assess the importance of the 'meeting,'" and that the website had too many layers of vague language to reach this agenda. In addition, the Petition contends that the County failed to inform the public about the Committee and its role in this process, noting that the Committee does not appear on the list of committees on the County's website and the public was not told about the Committee, even though the Council held a public hearing about the Facility's conditional use the day before the Committee hearing, which two members of the Committee attended.
With respect to the Council's meeting on April 27, 2021 in which the Council considered the Committee's recommendation, the Petition makes a single allegation - that the County failed to make a timely electronic posting of the agenda. The petitioners attached a print-out from the County's website, stating no agenda was available at 8:49am on April 21, 2021.
The County, through its legal counsel, provided a response on June 2, 2021, stating it provided adequate notice under FOIA ("Response"). The County maintains that the FOIA statute has no requirements for posting Council meeting notices or agendas on its website but does so as a service to the public. Noting that a lack of attendance is not a deficiency under FOIA, the County argues it properly noticed both the March 17, 2021 Committee hearing and the April 27, 2021 Council meeting by physically posting notices and agendas seven days in advance at the County Administration Building where the Committee hearing was held and the County Council Administrative office is located. To demonstrate its compliance, the County attached a copy of the March 17, 2021 notice and agenda along with a sworn affidavit from a staff member attesting that the notice and agenda were posted at 9:00am on March 10, 2021, which is seven days prior to the public hearing, as mandated by 29 Del. C. § 10004(e)(2). Although electronic posting is not required by FOIA, the County states that it posted notices about this Committee hearing in two places on its website, its "Meeting Calendar" and "Legal Notices" sections, on March 10, 2021 at 9:51am. In the "Meeting Calendar" section, the "Industrial Review Bond Committee" link directed to the agenda. Although the application itself was not included with the agenda, the County points out that the agenda describes the Bond application in detail and directed the public to the Finance Director to receive a copy. Although the County maintains that the requirements for notice under 9 Del. C. §7002 and the Internal Revenue Code are outside the scope of the FOIA statute and this Office's authority to opine, the County also claims that it met those requirements.
For the April 27, 2021 Council meeting, the County maintains that it satisfied FOIA by posting the hard copy notice and agenda at the County Administration Building at 4:20pm on April 20, 2021 and attached an affidavit of the staff who performed the posting. Due to the Council's weekly meetings scheduled every Tuesday, the County states it cannot post the notice sooner in the day, as the Council meetings often run past business hours and the County officials who set the agenda must attend the meeting and may incorporate unfinished matters into next week's meeting agenda. Although FOIA does not require an electronic posting, the County provided evidence that it electronically posted notice of its Council meeting on its website the next day at 9:38am. The County also alleges that two of the petitioners contacted the County prior to the meeting, indicating both had actual notice of the meeting. Finally, the County noted that the Committee members present at the conditional use hearing held the day before had no obligation to raise the Bond application, as the conditional use hearing is a completely different hearing subject to different statutes, rules, and procedures, and as discussed infra, the County complied with FOIA in noticing the Committee's public hearing.
DISCUSSION
FOIA requires public business to be performed in an open and public manner so that citizens "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." This Petition alleges that for both the March 17, 2021 Committee hearing and April 27, 2021 Council meeting, the County failed to provide proper public notice on its website. FOIA requires that public bodies give notice of the date, time, and location of their regular meetings, along with the agenda, if available, at least seven days in advance of the meeting and to make a conspicuous posting of the notice and agenda at the principal office of the public body holding the meeting, or if no such office exists, at the place where the meetings are regularly held. The County's counsel states that the Committee has no principal office, so the Committee's notice and agenda was posted at the County Administration Building where the Committee's public hearing was held, and the Council meeting notice and agenda was posted at Council's principal administrative office at the County Administration Building. As evidence that these requirements were met, the County submitted copies of the notices and agendas and sworn affidavits from the staff responsible for physically posting these items on March 10, 2021 and April 20, 2021, which constitutes seven days' advance notice. Counties are specifically excluded from the requirement to make any electronic postings for its meetings on their websites, but in this instance, the County made electronic postings after the physical postings were completed. Based on the foregoing, we conclude that the County posted the relevant March 17, 2021 and April 27, 2021 notices and agendas in the proper locations and within the time required by FOIA.
The Petition also alleges that the County failed in its obligations to inform the public of its upcoming Committee public hearing for the Bond application at the conditional use hearing held the day before and that the County website does not adequately inform the public about the Committee's existence and functions. FOIA does not require the County to inform the public about the Bond application at a separate hearing, nor does it require the County to incorporate general information about the Committee on its website. Additionally, this Opinion does not address the Petition's allegation regarding the other Delaware statutory provisions for newspaper publication, because this Office's authority is limited to determining whether violations of the FOIA statute occurred.
CONCLUSION
Based on the foregoing, we determine that the County has not violated FOIA as alleged in the Petition.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor
cc:
J. Everett Moore, Jr., County Attorney