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:

1. The Council voted less than 15 days after the public hearing, which she believed violated applicable law.
2. A councilmember answered the City Solicitor's post-vote questions in a way that was "substantively inconsistent" with how she had voted.
3. 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 with concerns about a council vote

The opinion holds that the AG's authority in the FOIA petition process is limited to determining whether a FOIA violation has occurred or is about to occur. Lindsey's claims about the timing of the vote (less than 15 days after the public hearing) and a councilmember's allegedly inconsistent answers "are not governed by FOIA and do not constitute alleged violations of the FOIA statute," so the Office lacked authority to address them. The opinion does not say where those claims could be raised instead.

If you are a Delaware municipal clerk maintaining a website

The opinion holds that FOIA does not require a municipality to post meeting minutes on its website. The City did not violate FOIA by failing to post its April and later minutes online. The AG added that the City "is encouraged to correct any errors when voluntarily posting minutes on its website," referring to the mislabeled March minutes, but treated that as encouragement, not a FOIA requirement.

Common questions

Q: Does Delaware FOIA require minutes to be posted online?
A: No. The opinion holds that FOIA does not require a municipality to post meeting minutes on its website, citing § 10004(f).

Q: What if posted minutes are mislabeled, like March minutes posted as April?
A: The opinion still found no FOIA violation, because online posting is not required in the first place. It encouraged the City to correct errors when it voluntarily posts minutes, but did not treat the mislabeling as a violation.

Q: Can the AG order a re-vote on the special use permit?
A: No. The opinion holds the Office's authority in the FOIA petition process is limited to determining whether a FOIA violation occurred. The timing of the vote and the request for a re-vote are not FOIA questions, so the Office could not address them.

Q: A councilmember answered the Solicitor inconsistently with her vote. Is that a FOIA violation?
A: No. The opinion holds that substantive inconsistencies in a councilmember's statements are not governed by FOIA, so the Office lacked authority to address that claim.

Q: What about the claim that the vote came less than 15 days after the public hearing?
A: The opinion holds that the timing of the Council's vote is not governed by FOIA and is not an alleged FOIA violation, so the Office could not address it.

Background and statutory framework

§ 10005 scope. The opinion states that the Office's authority in the FOIA petition process is limited to determining whether a "violation of [FOIA] has occurred or is about to occur." Claims that are not governed by FOIA fall outside that authority.

§ 10004(f). The opinion holds that FOIA does not require a municipality to post meeting minutes on its website.

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