Can a Delaware town council ban rebuttals during public comment, and is it enough to list executive-session reasons by statute subsection?

Plain-English summary

Tamara Skis filed a FOIA petition over the Town Council of Ellendale's November 1, 2023 meeting. She raised two issues. First, the agenda for the public comment period stated: "[a]t this time, anyone wishing to address the town council may do so, start by announcing your full name. Please note that there is a two minute time limit and there is no rebuttal from council members or members of the public permitted." She argued this denied the public a meaningful opportunity to engage with the body. Second, the agenda noted an executive session would be held "to discuss personnel matters, in which the name, competency and abilities of individual employees will be discussed and to discuss potential sales or leases of real property, and strategy sessions including legal advice from an attorney at law regarding pending or potential litigation. 29 Del. C. § 10004(b)(2), (4), (9)." She argued the agenda did not adequately disclose the executive-session reasons.

The AG ruled for the Town on both issues. On public comment, FOIA requires only a "meaningful opportunity for the public to engage with the public body." The statute does not require rebuttals or back-and-forth dialogue. A two-minute opportunity to address council, even with a no-rebuttal rule, is enough.

On executive session, FOIA requires the agenda to state the intent to hold an executive session and "the specific ground or grounds therefor under § 10004(b)." The Ellendale agenda cited subsections (b)(2), (4), and (9) and described the topics in plain language. The AG followed O'Neill v. Town of Middletown (Del. Ch. 2007), which held that "Personnel & Legal Issues" satisfied FOIA. Ellendale's agenda went further by quoting the statutory categories.

What this means for you

If you serve on a Delaware town council or board

The opinion holds two things. First, on public comment: FOIA requires a comment period that provides "a meaningful opportunity for the public to engage with the public body," but "FOIA does not obligate the Council to require rebuttals to the public's comments." A two-minute limit with a no-rebuttal rule did not violate § 10004(a). Second, on executive session: an agenda must include "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b)." Ellendale's agenda cited § 10004(b)(2), (4), and (9) and described the topics, which the opinion found sufficiently specific.

If you are a Delaware resident and the public-comment period felt one-way

The opinion holds that the "meaningful opportunity" requirement means the public must be able to present its comments; it does not require council members to respond or to permit rebuttals. The Town described the requirement as obligating Council to "give serious attention and actively listen," and, "when appropriate, schedule time on future agendas to address the public's comments." On this record, the no-rebuttal rule was not a FOIA violation.

What the opinion did not address

The petition challenged only the no-rebuttal public-comment rule and the executive-session notice on this one agenda. The opinion did not address the general-statement-of-major-issues requirement or any vague-agenda claim, because Skis did not raise one.

Common questions

Q: Does FOIA set a minimum length for public comment?
A: The opinion does not identify a minimum number of minutes. FOIA requires a comment period that provides "a meaningful opportunity for the public to engage with the public body," and the opinion found Ellendale's two-minute period satisfied that.

Q: Do council members have to respond to public comment? A: No. The opinion holds that "FOIA does not obligate the Council to require rebuttals to the public's comments." The no-rebuttal rule did not violate FOIA.

Q: What does an executive-session notice on an agenda have to say? A: Under § 10002(a), the agenda must include "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b)." Citing O'Neill v. Town of Middletown, the opinion notes public bodies are not required "to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed." Ellendale's citation of § 10004(b)(2), (4), and (9) with a topical description was sufficient.

Q: Does the agenda have to name the specific employee, property, or lawsuit? A: No. The opinion holds the stated grounds were "sufficiently specific to satisfy the requirements of FOIA"; the category plus a topical reference was enough, and the body need not elaborate in great detail.

Background and statutory framework

Public comment as a meaningful opportunity. Section 10004(a)(2) requires that the public-comment period "provide a meaningful opportunity for the public to engage with the public body." The opinion reads this as a time for the public to present its comments to the body, and holds that FOIA does not obligate the body to require rebuttals or to respond.

Agenda specificity for executive sessions. Section 10002(a) requires an agenda to include, when applicable, "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b)." Citing O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007), the opinion notes FOIA "does not require public bodies to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed." Ellendale's citation of the three subsections with a topical description satisfied that standard.

Burden of proof. Section 10005(c) puts the burden on the public body to demonstrate its compliance, and in certain circumstances a sworn affidavit may be required (Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021)). Here the Town's response enclosed the affidavit of its Council President.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions, including "agenda")
• 29 Del. C. § 10004 (Open meetings, public comment, executive session grounds)
• 29 Del. C. § 10005 (Enforcement)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007)

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/12/04/23-ib33-12-4-2023-foia-opinion-letter-to-tamara-skis-re-foia-complaint-concerning-the-town-council-of-ellendale/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/12/Attorney-General-Opinion-No.-23-IB33.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-IB33
December 4, 2023

VIA EMAIL
Tamara Skis
[email protected]

RE:

FOIA Petition Regarding the Town Council of Ellendale

Dear Ms. Skis:
We write in response to your correspondence, alleging that the Town Council of Ellendale violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 Town Council's November 1, 2023 meeting agenda did not violate FOIA as alleged in the Petition. The statement in the agenda prohibiting rebuttals during the public comment period did not violate Section 10004(a), and the reasons given for the executive session are sufficient under FOIA.

BACKGROUND
The Town Council of Ellendale posted a meeting notice and agenda for its November 1, 2023 meeting. The agenda states under item 11, "RECOGNITION OF VISITORS: [a]t this time, anyone wishing to address the town council may do so, start by announcing your full name." 1 This item also states "[p]lease note that there is a two minute time limit and there is no rebuttal from council members or members of the public permitted." 2 Item 13 in this agenda indicates that an 1

Petition.

2

Id.
1

executive session would be held "to discuss personnel [m]atters, in which the name, competency and abilities of individual employees will be discussed and to discuss potential sales or leases of real property, and strategy sessions including legal advice from an attorney at law regarding pending or potential litigation. 29 Del. C. § 10004(b)(2), (4), (9)." 3 This Petition followed, alleging that the Town Council's November 1, 2023 meeting agenda violated FOIA in two ways. First, you assert that agenda item 11 violated FOIA, as it did not allow the public a meaningful opportunity for engagement as required by the FOIA statute. Next, you allege that the Town planned an executive session but did not disclose the reason for the executive session on the agenda, nor was the reason addressed as an amendment to the agenda at any time during the meeting. The Town Council, through its legal counsel, replied to the Petition ("Response") and enclosed the affidavit of the Council President attesting to the accuracy of the statements in the Response. The Council contends that it adhered to the requirements of Section 10004(a) which require public bodies to provide a time for public comment and this period must provide a "meaningful opportunity for the public to engage with the public body." 4 The Council argues that its public comment period in item 11 of the agenda sufficiently allows for the public to engage with Council and that Council is not required to respond to the public's comments. The Town Council asserts that this provision is intended to require Council to give serious attention and actively listen to the public and when appropriate, schedule time on future agendas to address the public's comments. In addition, the Town Council states that the three reasons for the executive session under Section 10004(b) were posted on the initial agenda one week prior to the meeting.

DISCUSSION
The public body has the burden of proof to demonstrate its compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden. 6 FOIA provides that every meeting of a public body must provide a time for public comment, which "must provide a meaningful opportunity for the public to engage with the public body." 7 The Petition claims that the prohibition on the public or the councilmembers providing rebuttals during the public comment period constitutes a violation of FOIA. We believe that this public comment period is a time for the public to present its comments to the Council, and FOIA does not obligate 5

3

Id.

4

Response.

5

29 Del. C. § 10005(c).

6

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

7

29 Del. C. § 10004(a)(2).
2

the Council to require rebuttals to the public's comments made during this period. As such, we find no violation of FOIA in this regard. In addition, the Council set forth three reasons, the exceptions listed in Section 10004(b)(2), (4) and (9), for the executive session in its agenda. FOIA requires an agenda to include "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b) of [FOIA]." 8 Public bodies are not required to elaborate the reasons for executive sessions in great detail, and these three reasons stated in the November 1, 2023 agenda are sufficiently specific to satisfy the requirements of FOIA. 9 Thus, we also find no violation with regard to this second claim.

CONCLUSION
For the reasons set forth above, we conclude that the Town Council's November 1, 2023 meeting agenda did not violate FOIA as alleged in the Petition. The statement in the agenda prohibiting rebuttals during the public comment period did not violate Section 10004(a), and the reasons given for the executive session are sufficient under FOIA.

Very truly yours,
/s/ Dorey L. Cole
________
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
________
Patricia A. Davis
State Solicitor

cc:

James P. Sharp, Town Solicitor

8

29 Del. C. § 10002(a).

9

O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007) (determining that the reasons for the executive session on the agendas, including "Personnel & Legal Issues," satisfied FOIA, as FOIA "does not require public bodies to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed."). 3