Does Delaware FOIA require school boards to give a public comment period, and how much advance notice must they give if a meeting time is moved up by an hour?
Official title
22-IB30 08/24/2022 FOIA Opinion Letter to India Scott re: FOIA Complaint Concerning the Caesar Rodney School District Board of Education
Plain-English summary
India Scott filed a FOIA petition raising two issues about the Caesar Rodney School District Board of Education.
First, at the July 26, 2022 meeting, Scott had emailed the public-comment account in advance saying she wanted to comment virtually. When the Board called for comments, no requests were on file (a technical issue had blocked the email). Scott was not able to comment. The District apologized, noted future signup procedures, and described the technical glitch.
Second, at the April 12, 2022 meeting, the posted start time was 7:00 p.m. but the Board moved it up to 6:00 p.m. There was no electronic notice and nothing on the website. The District acknowledged that the rescheduling notice was posted only on the District office doors all day on the meeting date.
The AG split the result.
On the public-comment claim, the AG ruled FOIA does not require a public comment period. Reeder v. Del. Dep't of Ins. (Del. Ch. 2006) held that "FOIA does not require a public body to hold a public comment period." The District's failure to enable Scott's virtual public comment was a technical glitch with no FOIA violation. (Other statutes may impose public-comment obligations on certain bodies; that is outside the AG's FOIA jurisdiction.)
On the rescheduled-meeting claim, the AG found a FOIA violation. A rescheduled meeting (one held less than seven days after the scheduling decision) is a "special meeting" under 29 Del. C. § 10004(e)(4). The Board must give public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting" and "must explain why public notice of the rescheduled meeting could not be given seven days in advance." The District presented no evidence it met these requirements. Posting on the District office doors all day on the day of the meeting was insufficient.
For remediation, the AG noted that the factual record did not specify what items were discussed before the properly noticed 7:00 p.m. start. Invalidation by Chancery would require substantial public-rights impact. The AG recommended that the Board "revisit in a future Board meeting the items of public business that it publicly discussed or took action upon prior to the properly-noticed time of 7:00 p.m."
What this means for you
For Delaware school boards and other multi-meeting public bodies considering moving up a meeting time. Treat the change as a "rescheduled meeting" under § 10004(e)(4): post the new time at least 24 hours before, explain why seven days' notice cannot be given, and use multiple channels (website, email blast, physical posting). Posting only on office doors on the day of the meeting is FOIA-noncompliant and creates remediation risk.
For Delaware school district solicitors. Build a rescheduling protocol: any time change of a public meeting triggers (a) a 24-hour-minimum advance posting and (b) a written explanation of why seven days could not be given. Train clerks and have a template explanation ("Meeting time moved one hour earlier to accommodate scheduling conflict / room availability / other") that can be filled in quickly.
For parents, journalists, and advocates concerned about public comment. Note the gap. FOIA does not entitle you to a public-comment slot. School board policy or other Delaware statutes might. (For example, Delaware school board open-meetings practice typically includes a public-comment period as a courtesy, and 14 Del. C. has some specific public-input provisions for certain types of board action like budget hearings.) If the right to comment is important to you for a specific topic, identify the statute or board policy that creates that right; FOIA alone is not the source.
For Delaware school boards thinking about virtual public comment. Build the technical infrastructure with care. The District's mistake here was a technical glitch (an email not received). Best practice: (1) confirm to the requester that the comment request was received, (2) maintain a list of pending comment requests visible to the meeting host, (3) have a backup channel (phone, alternate email) for last-minute requests. Even though FOIA does not require it, public faith in the process suffers when comment infrastructure fails.
Common questions
What counts as a "rescheduled meeting" under § 10004(e)(4)?
"A meeting to be held less than 7 days after the scheduling decision is made." The defining feature is the timing of the scheduling decision, not just the change. If the Board on Monday decides to move Wednesday's meeting earlier, that decision was made less than seven days before the new meeting time, so it is a rescheduled meeting. The 24-hour-minimum advance-notice rule and the why-not-seven-days explanation apply.
Why is "I posted on the office door all day" not enough?
Because the public is not expected to make a daily pilgrimage to the office door. The "as soon as reasonably possible" standard, combined with the 24-hour minimum, contemplates active distribution: emails, website updates, automated alerts. Passive door posting on the day of the meeting, particularly when the original notice was on the website, fails to communicate the change.
What is a "public comment period" if FOIA doesn't require it?
A scheduled portion of a meeting where the public can address the body. Many Delaware school boards include a 30-minute public-comment period at the start of meetings. Some are required by board policy; some are tradition. Some states (not Delaware) require public-comment periods by statute. Delaware's FOIA does not.
What are the consequences of holding a meeting one hour earlier than noticed?
The first hour's discussions are vulnerable. If the Board took action during that hour, those actions could be voidable by Chancery under § 10005(a). The AG can recommend re-noticing and re-discussing (which is what happened here). For non-action items (general updates, reports), the consequence is mainly the public's lost opportunity to attend.
What's the AG's invalidation recommendation here?
The AG declined to recommend invalidation because the factual record did not specify what was discussed in the first hour. The recommendation was that the Board "revisit" those items at a future meeting, which can include re-discussion or re-vote. Less drastic than invalidation; sufficient remediation given the circumstances.
Was this a one-time mistake or a pattern at Caesar Rodney?
The opinion addresses one rescheduling. There is no allegation of a pattern. Future similar incidents would weigh more heavily in any subsequent petition.
Background and statutory framework
29 Del. C. § 10001 sets the open-meetings policy goal.
29 Del. C. § 10004 establishes meeting requirements. Section 10004(e)(4) defines special/rescheduled meetings and imposes the 24-hour-minimum-notice and explanation requirements.
The "FOIA does not require public comment" rule is from Reeder v. Del. Dep't of Ins. (Del. Ch. 2006). The court there explicitly noted that other bodies of law may apply to ensure public bodies "discharge their legal responsibilities in a non-arbitrary and public-regarding manner," but FOIA itself is silent.
29 Del. C. § 10005(c) places the burden on the public body. The Board's bare assertion that notice was posted on the District doors all day did not meet the burden.
The remediation framework comes from Ianni v. Dep't of Elections (Del. Ch. 1986).
Citations
- 29 Del. C. § 10001: open-meetings policy
- 29 Del. C. § 10004, § 10004(e)(4): meeting requirements; rescheduled meeting
- 29 Del. C. § 10005, § 10005(c): petition; burden of proof
- 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Reeder v. Del. Dep't of Ins., 2006 WL 510067 (Del. Ch. Feb. 24, 2006): public comment not required
- Ianni v. Dep't of Elections for New Castle Cnty., 1986 WL 9610 (Aug. 29, 1986): invalidation standard
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/08/24/22-ib30-08-24-2022-foia-opinion-letter-to-india-scott-re-foia-complaint-concerning-the-caesar-rodney-school-district-board-of-education/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/08/Attorney-General-Opinion-No.-22-IB30.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
ATTORNEY GENERAL
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
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-IB30
August 24, 2022
VIA EMAIL
India Scott
[email protected]
[email protected]
RE: FOIA Petition Regarding the Caesar Rodney School District Board of Education
Dear Ms. Scott:
We write in response to your correspondence alleging that the Board of Education of the Caesar Rodney School District 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. For the reasons set forth below, we determine that the Board violated FOIA by failing to meet its burden to demonstrate that the rescheduled April 12, 2022 meeting was properly noticed. However, we find that the allegations about the public comment period at the July 26, 2022 meeting do not constitute a violation of FOIA.
BACKGROUND
The Petition alleges that violations occurred at the July 26, 2022 and April 12, 2022 Board meetings. At the July 26, 2022 Board meeting, although you emailed the account designated for public comments indicating you wanted to provide public comment virtually at the meeting, you assert that when the Board called for public comments during the meeting, you were not permitted to speak, because the Board was informed that no requests for public comment were submitted. District staff emailed you following the meeting to advise that a technical difficulty precluded them from seeing your email prior to the meeting; they apologized for the error, noting for future reference that sign in sheets were available at the door and you may sign up to give public comment at future meetings by contacting the District office before 3:00 p.m. on the meeting date.
At the April 12, 2022 meeting, you allege that the posted start time was 7:00 p.m, but the Board changed the time to 6:00 p.m. without sufficiently notifying the public of the change. There was no electronic notice, and nothing posted on the website. You state that when you raised this issue with the District, the staff asserted that the notice of the rescheduled meeting was posted all day on the District office doors.
On August 1, 2022, the Board, through its legal counsel, answered the Petition ("Response"). The District apologized for the inadvertent error that precluded your ability to offer public comment at the July 26, 2022 Board meeting and explained the circumstances resulting in the error that caused your email to be missed. However, as FOIA does not require a public comment period be held, the District argues that no FOIA violation occurred. With respect to the April 12, 2022 Board meeting, the District accepts your factual summary and reiterates that the meeting time changed by an hour and the notice of the revised time was posted on the District office doors but not the website.
DISCUSSION
To allow citizens the opportunity to observe the performance of its public officials and monitor these decisions about public business, FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public, and meeting notices and agendas be timely posted in advance of the meeting in accordance with the statute. A public body has the burden of proof to demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden.
The Petition first alleges that the Board violated FOIA by not permitting you to speak during the public comment period of the July 26, 2022 meeting. Although other laws may govern a public comment period, FOIA does not require a public body to hold a public comment period. Thus, we find no violation of FOIA occurred with respect to the first allegation.
The Petition's second allegation is that the Board failed to provide proper notice of its rescheduled meeting on April 12, 2022. The Board acknowledges that the meeting notice with the time change was posted on its District office doors all day on the day of the meeting. A rescheduled or special meeting is defined as "one to be held less than 7 days after the scheduling decision is made." For a rescheduled meeting, FOIA requires that the Board give public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting." In addition, the notice must explain why public notice of the rescheduled meeting could not be given seven days in advance. The Board has not presented any evidence that it met these requirements. Accordingly, we find that the Board violated FOIA by failing to demonstrate that it posted proper notice of its rescheduled meeting.
Having found that the Board violated FOIA, we must determine whether it is appropriate to recommend any remediation. The authority to invalidate a public body's action or impose other relief is reserved for the courts, and the courts have emphasized that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." In this case, the Board did not give proper notice of its earlier start time, meaning that citizens wishing to attend the first hour of the meeting may not have received notice of the rescheduled meeting. This factual record does not specifically delineate the issues discussed prior to the properly-noticed 7:00 p.m. start time. While we do not find this record sufficient to determine that a court is likely to invalidate the Board's action on any items, we recommend that the Board revisit in a future Board meeting the items of public business that it publicly discussed or took action upon prior to the properly-noticed time of 7:00 p.m.
CONCLUSION
For the foregoing reasons, we conclude that the Board violated FOIA by failing to meet its burden to demonstrate that the rescheduled April 12, 2022 meeting was properly noticed. However, we find that the allegations about the public comment period at the July 26, 2022 meeting do not constitute a violation of FOIA.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
Deputy State Solicitor
cc: James H. McMackin, III, Attorney to Caesar Rodney School District