If four members of a thirteen-member city council meet at a councilmember's house, is that a 'meeting' under Delaware's open-meetings law?

Plain-English summary

Wilmington Councilmember Linda Gray filed a FOIA petition alleging that some of her colleagues had been holding private meetings at one councilmember's residence (Councilmember Walsh) and at another's office (Councilmember Johnson) between January and April 2022. She argued that three members of Council are enough to constitute a "quorum" because three committee members can move legislation. She also alleged that eight members had met before the 108th session of Council in January 2021 to lock in the Council's agenda and structure.

The City of Wilmington responded that:

1. The City Council has thirteen members and requires seven members for a quorum (City Council Rule 3), not three.
2. The Petition's sole concrete allegation was Councilmember Walsh's own statement that meetings of "up to four" councilmembers occurred at her residence. Four is below quorum.
3. The 2021 pre-session meeting was time-barred under the AG's six-month rule for FOIA petitions.

The AG agreed with the City. Two findings:

• The 2021 pre-session meeting was time-barred. The AG's office "does not generally consider petitions alleging FOIA violations occurring more than six months prior" to receipt (Op. 17-IB31).
• The 2022 meetings at Walsh's residence did not establish a prima facie case. The petitioner had to show "substantive proof of a secret meeting rather than mere speculation." The strongest fact in the Petition (four members at Walsh's residence) was below the seven-member quorum threshold and therefore not a "meeting" under § 10002(j).

The AG nevertheless cautioned the Council that a series of sub-quorum meetings on the same topic can amount to a circumvention of FOIA, even when no single meeting meets quorum. Tryon v. Brandywine (1990) and Op. 18-IB23 and 96-IB05 stand for that proposition. The AG warned: "The City Council is strongly cautioned to refrain from conducting meetings with less than a quorum in the future."

A subtle but important footnote: the City did not volunteer information about specific committee compositions. A committee of City Council requires fewer members for a quorum than the full Council. If the Petition had alleged that a quorum of a specific committee (e.g., the Finance and Economic Development Committee) met privately, the analysis "would have been closely analyzed."

What this means for you

If you serve on a Delaware city council, school board, or county council

The "below quorum, no meeting" rule is a sometimes-misunderstood feature of Delaware open-meetings law. Three concrete points:

1. Know your specific quorum number. Every public body has its own quorum rule, set by charter, ordinance, or governing document. Wilmington's is seven of thirteen. Other Delaware bodies vary widely. Trying to apply a one-size-fits-all "majority" rule fails for unusually-structured bodies.
2. Sub-quorum meetings are not automatically lawful. Tryon v. Brandywine and Op. 18-IB23, 96-IB05 caution that a serial pattern of sub-quorum gatherings discussing the same business can still violate FOIA. The classic abuse: the chair calls members in pairs to discuss a controversial vote, knowing each pair-conversation is below quorum but the cumulative effect is a deliberation. Don't do that.
3. Committee quorums are different from full-body quorums. A meeting of four members of City Council might also be a meeting of a three-person Finance Committee plus one observer. Track committee meetings separately and treat them as subject to FOIA when a quorum of the committee is present.

If you are a Delaware resident concerned about city council transparency

Two practical lessons:

1. Make your petition specific. Op. 16-IB18 explains that "without specific information regarding specific dates, the number of Council members present, and the number of Council members to whom you allege the Mayor passed notes during specific meetings, these allegations are too vague to warrant consideration." Before filing, gather: dates, attendees, location, and what was discussed. Audio recordings of public meetings often contain admissions you can quote. Public statements by councilmembers (at meetings or in press) are useful evidence.
2. Allege committee quorums when applicable. This opinion's footnote is the path forward. If three Finance Committee members met at the chair's residence, that may be a meeting of a three-person committee subject to FOIA, even though it is below the full-Council quorum. Identify the committee structure and members in your petition.

If you are a Wilmington-area journalist or civic researcher

The Council's quorum is seven of thirteen members, set in City Council Rule 3. Smaller groupings are not "meetings" under FOIA but may still be reportable as "the four-member faction is consolidating support for X." Watch for:

• Same handful of members appearing together at multiple non-public gatherings on the same subject.
• Public statements by councilmembers describing private meetings (those statements are admissible in petitions).
• Committee meetings labeled as informal but attended by a committee quorum.

If you are a city solicitor advising a public body

The opinion's caution language ("strongly cautioned to refrain from conducting meetings with less than a quorum") signals that the AG is skeptical of sub-quorum gatherings even when technically lawful. Practical guidance to clients:

1. If three or four members want to discuss council business, treat that as a sensitive practice. Ask: would these conversations naturally happen anyway (committee work, briefings)? Or are they patterns that look like deliberation?
2. Document agenda for any meeting of two or more council members.
3. Avoid serial conversations on the same topic among different sub-quorum groups within a short time window. That is the Tryon pattern.

Common questions

Q: How many councilmembers have to be at a meeting for it to count under FOIA?
A: A "quorum of the members of any public body" must be present. § 10002(j). The quorum number is set by the public body's own governing document. For Wilmington City Council it is seven (out of thirteen). For a typical five-member school board it might be three. Check the body's charter, bylaws, or Robert's-Rules-default.

Q: Can three or four councilmembers meet privately?
A: Below quorum, the meeting is not a "meeting" under § 10002(j). But Tryon, Op. 18-IB23, and Op. 96-IB05 caution that a series of below-quorum meetings on the same topic can amount to circumvention of FOIA. A single dinner among four of thirteen members is not a violation. A pattern of four-person dinners every Tuesday discussing pending legislation might be.

Q: What is a 'prima facie case' that I have to make in a secret-meeting petition?
A: You have to provide enough specific facts to make it plausible that a violation occurred. Op. 17-IB20 explains: "substantive proof of a secret meeting rather than mere speculation." Specific dates, attendees, location, topic. Once you do that, the burden shifts to the public body to prove no violation occurred.

Q: How long do I have to file a FOIA petition?
A: Six months from the alleged violation. The AG's Rules of Procedure (DDOJ 2019) and Op. 17-IB31 establish this. Older claims are time-barred "for fairness and practical reasons." Exceptions are rare.

Q: What about meetings at a councilmember's home or office?
A: The location does not change the analysis. A meeting is a meeting if a quorum is gathered to discuss public business, wherever it happens. Conversely, a sub-quorum gathering at City Hall is no more a "meeting" than the same conversation at someone's house.

Q: Does FOIA require minutes for sub-quorum meetings?
A: No. FOIA's minutes-and-notice rules apply to meetings (i.e., quorum gatherings). Sub-quorum gatherings are not subject to those requirements unless they cross into a circumvention pattern.

Q: What's the difference between a 'committee' meeting and a 'caucus' or sub-quorum meeting?
A: A committee is a formally constituted sub-body with its own quorum rules. A meeting of a quorum of a committee is itself a "meeting" under FOIA. A casual gathering of councilmembers who happen to be committee members is not a committee meeting unless they convene as the committee. The City declined to volunteer whether the Walsh residence meetings constituted a committee quorum, so the AG could not analyze.

Background and statutory framework

Delaware's open-meetings law starts in 29 Del. C. § 10001 with the policy that public business be performed in public so citizens "have the opportunity to observe . . . and monitor the decisions . . . in formulating and executing public policy."

Section 10002(j) defines "meeting" as "the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business." Three operative elements: (1) quorum, (2) public-body members, (3) discussion or action on public business.

The quorum requirement is the threshold. Below quorum, no "meeting." But the AG and Delaware courts have repeatedly cautioned that the quorum rule is not a blank check for serial sub-quorum meetings. Tryon v. Brandywine School Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990), addressed a series of phone calls between a superintendent and individual board members and found, on the facts, no FOIA circumvention. But the analysis would have been different if the calls had been a coordinated attempt to deliberate. Op. 96-IB05 found that Georgetown Town Council had circumvented FOIA by acting in sub-groups to draft a memorandum. Op. 18-IB23 reaffirmed: "a series of discussions among less than a quorum of a public body may amount to a meeting" when discussion occurs among more than one member.

The prima facie burden-shifting rule is from Op. 05-IB10, importing the standard from Gavin v. City of Cascade, 500 N.W.2d 729 (Iowa App. 1993), and Harris v. Nordquist, 771 P.2d 637 (Or. App. 1989): the petitioner first has to show "substantive proof," not "mere speculation." Once made, the burden shifts to the public body, which would otherwise have to "prove a negative."

The six-month rule for petitions comes from the AG's 2019 Rules of Procedure for FOIA Petitions and Op. 17-IB31. The rule is not statutory but has been consistently applied. Petitioners have to bring claims promptly.

The Tesla-style direct-vs-derivative analysis is also at play here. The Petition relied heavily on Councilmember Walsh's own public statement about meetings at her residence. That is admissible evidence. Hearsay through other councilmembers (e.g., "Councilmember Darby said that Councilmember Oliver said that there was a meeting at Walsh's") is weaker. The AG's footnote 10 noted that "[a]ssuming arguendo the additional statements in the Petition attributed to other members of Council were accurate or had evidentiary support, those statements are also insufficiently vague."

Citations and references

Statutes:
- 29 Del. C. § 10001 (Policy)
- 29 Del. C. § 10002 (Definitions, including "meeting")
- 29 Del. C. § 10005 (Enforcement)

Cases:
- Tryon v. Brandywine School Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990)
- Gavin v. City of Cascade, 500 N.W.2d 729 (Iowa App. 1993)
- Harris v. Nordquist, 771 P.2d 637 (Or. App. 1989)

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB20 (July 12, 2017) (prima facie burden)
- Del. Op. Att'y Gen. 05-IB10 (April 11, 2005) (substantive-proof requirement)
- Del. Op. Att'y Gen. 17-IB31 (July 24, 2017); 16-IB14 (June 9, 2016); 12-IIB11 (Nov. 7, 2012); 05-IB26 (Aug. 29, 2005) (six-month petition rule)
- Del. Op. Att'y Gen. 18-IB23 (May 4, 2018); 96-IB05 (Feb. 13, 1996) (serial sub-quorum meetings can violate FOIA)
- Del. Op. Att'y Gen. 16-IB18 (Sept. 29, 2016) (specificity required)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/06/03/22-ib22-06-03-2022-foia-opinion-letter-to-councilmember-linda-gray-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/06/Attorney-General-Opinion-No.-22-IB22.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. 22-IB22
June 3, 2022

VIA EMAIL
Councilmember Linda Gray
Wilmington City Council
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Councilmember Gray:
We write in response to your correspondence alleging that the City of Wilmington 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 more fully herein, we conclude
that the Petition has not formed a sufficient basis to determine whether the City Council privately
met in violation of FOIA.

BACKGROUND
The Petition claims that members of the Wilmington City Council held private meetings
without advance public notice or the preparation of minutes, in violation of FOIA. In particular,
you state that you have been informed that these periodic meetings, involving seven members of
Council, were held at Councilmember Walsh's residence between January 6, 2022 and April 11,
2022. The Petition cites the audio recording of Councilmember Walsh's statement at a public
meeting, indicating that quarantine confined her to her residence and she has held meetings
involving up to four members at her residence. Further, you state that Councilmember Oliver
informed you of another meeting at Councilmember Johnson's new office to discuss a selection
for a vacancy. You also assert that Councilmember Darby publicly stated that Councilmember
Oliver discussed meeting at Councilmember Walsh's residence and at Councilmember Johnson's
1

office. You state that you believe that a quorum of the Council consists of three members because
"three council committee members can move legislation." 1 Additionally, the Petition alleges a
second violation occurred when eight Councilmembers met to decide the Council's agenda and
structure prior to the 108th session of Council, and then voted together as a block at the first Council
meeting of that session.
On May 12, 2022, the City, through its legal counsel, responded to the Petition
("Response"). For the first claim, the City notes that Councilmember Walsh's admission at the
recent Council meeting merely indicated that the meetings involved up to four members. As the
City requires seven members to reach a quorum, the City contends that the meetings do not
constitute a meeting subject to the open meeting requirements. The City also asserts that a special
committee did not convene, as the City has not formally appointed such a committee in accordance
with Council's rules. Regarding the second claim, the City argues that because the meeting of
eight members allegedly occurred before the 108th session, which began in January 2021, it is timebarred from consideration in this Opinion. Alternatively, the City contends that the individuals
meeting at that time were not yet sworn members of Council, and thus, a quorum of members was
not present. In addition, the City acknowledges that three members of the Finance and Economic
Development Committee could have been present at this meeting but asserts that the Petition does
not specifically allege that public business of this committee was discussed.

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." 2 A meeting
under FOIA is "the formal or informal gathering of a quorum of the members of any public body
for the purpose of discussing or taking action on public business." 3 As a preliminary matter, the
claim regarding the alleged meeting held as late as January 2021 would have occurred more than
six months prior to this Petition and is therefore time-barred from consideration in this Opinion. 4

1

Petition.

2

29 Del. C. § 10001.

3

29 Del. C. § 10002(j).

4

DEL. DEP'T JUST., RULES OF PROCEDURE FOR FOIA PETITIONS AND
DETERMINATIONS, at 3 (2019), https://attorneygeneral.delaware.gov/wp-content/uploads/sites
/50/2019/09/DDOJ-Rules-of-Procedure-for-FOIA-Petitions-and-Determinations.9.26.19.pdf; see
also Del. Op. Att'y Gen. 17-IB31, 2017 WL 3426271, at 1 (July 24, 2017) (stating "this Office
does not generally consider petitions alleging FOIA violations occurring more than six months
prior to our receipt of the petition" and "this is a general rule that we adhere to 'for fairness and
practical reasons'"); Del. Op. Att'y Gen. 16-IB14, 2016 WL 3462345, at 2 (Jun. 9, 2016); Del.
Op. Att'y Gen. 12-IIB11, 2012 WL 5894039, at *5 (Nov. 7, 2012) ("We believe your petition is
2

untimely, and you have provided us with no reason to deviate from our long-standing policy and
practice in this case."); Del. Op. Att'y Gen. 05-IB26, 2005 WL 3991284, n. 3 (Aug. 29, 2005).
5

For the allegation regarding meetings in 2022, the petitioner carries the initial burden of
making a prima facie case that a meeting occurred. 5 "A plaintiff must show substantive proof of
a secret meeting rather than mere speculation in order to shift the burden of going forward." 6 The
allegations must be sufficiently specific to allow consideration. 7 "Once a plaintiff has made a
prima facie case that a quorum of a public body has met in private for the purpose of deciding on
or deliberating toward a decision on any matter," the burden then shifts to the public body to prove
that no violation of the open meeting requirements occurred. 8 This burden-shifting occurs to avoid
requiring a public body from having to "prove a negative," i.e., prove that a meeting did not occur. 9
In this instance, the Petition primarily relies on Councilmember Walsh's public statement
that meetings of up to four councilmembers occurred at her residence, coupled with the belief that
only three members constitute a quorum of the City Council. 10 As seven members constitute a
quorum of the City Council, 11 the Petition merely supports a finding that, at best, meetings
occurred with less than a quorum of councilmembers. Thus, we find that the Petition does not
establish the requisite prima facie case necessary to shift the burden to the City to demonstrate

Del. Op. Att'y Gen. 17-IB20, 2017 WL 3426260, at *7 (July 12, 2017); see also 29 Del. C.
§ 10005(c).
6

Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240, at *2 (April 11, 2005) (citing Gavin v.
City of Cascade, 500 N.W.2d 729, 732 (Iowa App. 1993).
7

See also Del. Op. Att'y Gen. 16-IB18, 2016 WL 5888777, at *5 (Sept. 29, 2016) (finding
that the petitioner did not sufficiently support its prima facie case: "without specific information
regarding specific dates, the number of Council members present, and the number of Council
members to whom you allege the Mayor passed notes during specific meetings, these allegations
are too vague to warrant consideration").

8

Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240, at *2 (citing Harris v. Nordquist, 771
P.2d 637, 641 (Or. App. 1989).

9

Id.

10

Assuming arguendo the additional statements in the Petition attributed to other members
of Council were accurate or had evidentiary support, those statements are also insufficiently vague
and fail to meet this burden.
11

City Council Rule 3 ("The attendance of at least seven (7) Council Members is required to
establish quorum for official meetings of City Council.").
3

compliance with FOIA. 12 While we do not find that a prima facie case has been established in this
case, former precedent suggests that a series of meetings of less than a quorum involving
discussion of the same topic among more than one public body member may amount to a
"meeting" under FOIA and may circumvent FOIA's requirement that such discussions of public
business be held in in public. 13 The City Council is strongly cautioned to refrain from conducting
meetings with less than a quorum in the future.

CONCLUSION
For the reasons set forth above, we determine that the Petition has not formed a sufficient
basis to determine whether City Council privately met in violation of FOIA.

Very truly yours,
/s/ Dorey L. Cole

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

Aaron R. Goldstein
State Solicitor
cc:

John D. Hawley, Assistant City Solicitor

12

In contrast to the seven members required to make a quorum of City Council, a committee
of the City Council would likely require fewer members to make a quorum. The Petition did not
allege that a quorum of any specific committee of the City Council met, and the City did not
volunteer information that would have demystified that issue. If such an allegation had been made
in this case, the claim would have been closely analyzed in light of Councilmember Walsh's
admission that up to four Councilmembers met at her residence.
13

See, e.g., Tryon v. Brandywine School Dist. Bd. of Educ., 1990 WL 51719, at 3 (Del. Ch.
Apr. 20, 1990) ("The evidence adduced by defendants and not controverted by the plaintiffs is that
the phone calls made by Dr. Graham to the various board members were not a means of
circumventing the Freedom of Information Act through serial telephone conversations.");
Del. Op.
Att'y Gen. 18-IB23, 2018 WL 2266974, at 3 (May 4, 2018) (stating that "[p]rior opinions of this
Office have suggested that a series of discussions among less than a quorum of a public body may
amount to a meeting" when discussion occurred among more than one member of the public body);
Del. Op. Att'y Gen. 96-IB05, 1996 WL 114716, at *4 (Feb. 13, 1996) (deciding that Georgetown
Town Council met in sub-groups to discuss, formulate and execute a memorandum, which
suggests that the Council acted deliberately to circumvent the open meeting requirements).
4