Must a Delaware municipality post meeting minutes online, and can the AG review the merits of a council's vote?
Plain-English summary
Erica Lindsey raised three concerns about an April 17, 2023 Mayor and Council meeting in Delaware City. The Council voted on a special use permit for townhomes about 30 minutes after the public hearing on the same item, without (Lindsey alleged) any Council discussion of the public's comments. Then, after Lindsey wrote to the Council asking for a re-vote, she got no reply. She filed a petition raising:
- The Council voted less than 15 days after the public hearing, which she believed violated applicable law.
- A councilmember answered the City Solicitor's post-vote questions in a way that was "substantively inconsistent" with how she had voted.
- The City failed to post the April meeting minutes on its website, posted the March minutes mislabeled as April, and had not posted any subsequent minutes.
The AG addressed only the third claim because the other two were outside FOIA's scope. The AG's authority under § 10005 is limited to determining whether a FOIA violation has occurred or is about to occur. Substantive questions about whether a vote was legitimate or whether a councilmember said something inconsistent are not FOIA questions.
On the third claim, the AG found no violation. Section 10004(f) does not require a municipality to post meeting minutes on its website. The City was "encouraged" to fix labeling errors when it does post voluntarily, but failure to post online is not a FOIA violation.
What this means for you
If you are a Delaware resident frustrated with your council's process
Two distinct concerns and two different paths:
- Process concerns about how a vote happened (timing, public comment, substantive answers) are typically not FOIA matters. They are governed by the local charter, zoning ordinances, state administrative law, or general municipal law. The remedy is usually a writ of certiorari or appeal of the underlying land-use decision in Superior Court, not a FOIA petition.
- Process concerns about meeting notice, agenda, executive sessions, and minutes are FOIA matters. § 10004 sets the rules; § 10005 gives you the petition tool. The bar is procedural compliance, not substantive correctness.
Practical: if your real grievance is "they decided the wrong way" or "they did not engage with my comments," that is a political/legal complaint. If your real grievance is "they did not let me see the meeting" or "they did not give the required notice," that is FOIA.
If you are a Delaware municipal clerk maintaining a website
Posting minutes online is not required by FOIA. If you do post, fix mistakes promptly:
- Label files correctly (March vs April, etc.).
- Post promptly after approval (or note when minutes are awaiting approval at the next meeting).
- Use a consistent URL pattern so links don't break when names change.
The AG explicitly declined to find a FOIA violation here, but the encouragement to fix errors signals that sloppy online practice can become a target for future petitions if a pattern develops.
If you serve on a Delaware planning and zoning commission or town council
The opinion has nothing direct to say about your meeting timing or vote procedures. Those are local-charter and state-statute questions. The FOIA-relevant lessons:
- Properly notice your meetings (advance notice, agenda).
- Take any vote to enter executive session in public.
- Keep minutes that reflect the actual proceedings.
- Online posting is a courtesy, not a requirement.
Common questions
Q: Does Delaware FOIA require minutes to be posted online?
A: No. § 10004(f) explicitly does not require online posting of notices, agendas, or minutes. Physical posting at Town Hall and on-site availability of minutes is the statutory minimum.
Q: What if minutes are wrong on the website?
A: Not a FOIA violation if the City did not have to post in the first place. But a misleading post (e.g., mislabeling March as April) creates risk of pattern allegations later. Best practice is to correct quickly.
Q: Can the AG order a re-vote on a special use permit?
A: No. The AG's office under § 10005 can only address FOIA compliance. Re-vote remedies come through challenges to the underlying land-use decision in court (typically a writ of certiorari) or, in some cases, through reconsideration motions at the council itself.
Q: My councilmember said something inconsistent with her vote when the Solicitor asked her about it. Is that a FOIA violation?
A: No. FOIA addresses whether the meeting was open and properly noticed, not whether members' statements at the meeting are coherent. If you believe the councilmember acted in bad faith, look to ethics rules, the local charter, or political accountability.
Q: What is the 15-day rule the petitioner referenced?
A: Specific local zoning ordinances or codes sometimes impose minimum periods between public hearings and votes. Delaware FOIA does not impose such a rule. The petition apparently relied on a local provision; the AG noted it was not a FOIA matter.
Q: How do I challenge a special use permit decision in court?
A: Typically by writ of certiorari to the Superior Court within a short statutory window after the decision (often 30 days). Talk to a Delaware land-use attorney. Don't rely on FOIA for that purpose.
Background and statutory framework
§ 10005 scope. The AG's authority is limited to FOIA. The petition process exists to determine "whether a violation of FOIA has occurred or is about to occur." Other complaints, no matter how valid, fall outside.
§ 10004(f). Public bodies are not required to post meeting notices, agendas, or minutes online. Recording meetings is also not required. Physical posting and written minutes are the minimums.
Standing limit. The petition process is open to citizens. The AG can decline to address non-FOIA issues without prejudice; the petitioner can still pursue them in the proper forum.
Citations and references
Statutes:
- 29 Del. C. § 10004(f) (no online posting requirement)
- 29 Del. C. § 10005 (enforcement scope)
Source
- Landing page: https://attorneygeneral.delaware.gov/2023/08/15/23-ib25-08-15-2023-foia-opinion-letter-to-erica-lindsey-re-foia-complaint-concerning-the-city-of-delaware-city/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/08/Attorney-General-Opinion-No.-23-IB25.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB25
August 15, 2023
VIA EMAIL
Erica Lindsey
[email protected]
RE:
FOIA Petition Regarding the City of Delaware City
Dear Ms. Lindsey:
We write in response to your correspondence alleging that the City of Delaware City
violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat
this 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
determine that the City did not violate FOIA by failing to post its meeting minutes on its website.
Additionally, we find that this Office lacks the statutory authority to address the remaining claims
in the Petition.
BACKGROUND
The City's Mayor and Council voted at their April 17, 2023 meeting on a special use permit
to build certain townhomes. According to the Petition, a public hearing was held about thirty
minutes prior to this vote, and the Council did not discuss the public's comments prior to the vote. 1
Following this meeting, you sent correspondence to the City identifying concerns with the process
for the permit and asking for a re-vote on this matter. You assert that you did not receive a reply.
This Petition followed.
1
Petition.
1
The Petition alleges that voting on the permit less than fifteen days after the public hearing
is a violation of applicable law. The Petition also asserts that at this meeting, a certain
councilmember, when questioned by the City Solicitor immediately after her vote, answered those
questions in a manner substantively inconsistent with the councilmember's vote. Finally, the
Petition asserts that the City failed to post its April meeting minutes to its website; instead, the
City posted the March minutes with the April meeting notice and incorrectly labeled the March
minutes as the April meeting minutes. Moreover, it is alleged that the City has failed to post any
meeting minutes on the City's website or Facebook page since those March minutes were posted.
DISCUSSION
This Office's authority in the FOIA petition process is limited to determining whether a
"violation of [FOIA] has occurred or is about to occur." 2 The Petition's claims regarding
substantive inconsistencies related to the councilmember's vote and limitations on the timing of
the Council's vote are not governed by FOIA and do not constitute alleged violations of the FOIA
statute. Accordingly, this Office lacks the authority to address those claims.
The Petition also alleges that the City failed to post the April minutes and any minutes for
subsequent meetings on its website. FOIA does not require a municipality to post meeting minutes
on its website. 3 While the City is encouraged to correct any errors when voluntarily posting
minutes on its website, we find that the City did not violate FOIA by failing to post these minutes
to its website.
CONCLUSION
For the reasons set forth above, we conclude that the City has not violated FOIA by failing
to post its meeting minutes on its website.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
2
29 Del. C. § 10005.
3
29 Del. C. § 10004(f).
2
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
William J. Rhodunda, Jr., City Solicitor
3