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 gives you practical clearance for two common practices.

1. Time-limited, no-rebuttal public comment is fine. You can cap speakers at two minutes (or three, or any reasonable limit), and you can decline to debate from the dais. What you cannot do is eliminate the public comment period entirely or make it inaccessible. The "meaningful opportunity" test is whether the public can actually be heard, not whether they get a response.
2. Agenda notice of executive session can be brief. Citing the statutory subsection plus a short topical description is enough. You do not need to detail which specific employee, which property, or which lawsuit. Just the category and the cite. O'Neill v. Town of Middletown is the controlling Court of Chancery decision.

What you should still do well: actually meet the no-rebuttal rule even-handedly (if you let one council member respond, FOIA may not care, but appearance of fairness will). Keep separate notes for executive-session decisions and reflect any votes back in open session.

If you are a Delaware resident frustrated by short or one-way public comment

You are not getting a remedy under FOIA on this point. The AG read § 10004(a)(2)'s "meaningful opportunity to engage" narrowly: meaningful means the public can speak, not that the council must respond. Some practical alternatives:

• Use the comment period strategically. Two minutes is enough to ask a question that the council may then put on a future agenda for action. Frame your point as a request for follow-up, not a debate invitation.
• Use written comment channels. Most councils accept email correspondence, which gets filed in the public record without a time limit.
• Use election and public-records tools. If a council majority routinely uses no-rebuttal rules to avoid hard questions, that becomes an electoral issue and a record-by-record FOIA campaign for documents underlying votes.
• Request that specific topics be on a future agenda. This is the cleanest path: ask the council to schedule "Trash Contract" or "Police Budget" as a noticed agenda item with discussion built in.

If you cover small-municipality government

Two practical leads from this opinion:

• Watch for boilerplate executive-session language without a category cite. The minimum standard is statutory citation plus topic. Agendas that skip the citation are vulnerable.
• Track no-rebuttal rules paired with vague agenda items. Skis lost this petition, but a separate fight over agenda specificity (the "Old Business / New Business" pattern flagged in 22-IB10 and similar) is more productive. Councils that combine no-rebuttal comment with vague agendas effectively shield substantive votes from public scrutiny.

If you handle municipal counsel work

Useful citation tools from this opinion: O'Neill v. Town of Middletown for executive-session adequacy and § 10004(a)(2) for the boundaries of the comment requirement. The AG explicitly said "FOIA does not obligate the Council to require rebuttals to the public's comments." Brief that line if a client is challenged.

One caution: this opinion involved a one-time agenda. Future agendas with patterned shortcomings (always-vague headings, recurring undisclosed votes) will draw a different analysis. The 22-IB10 line of cases (vague agenda items, "Old Business" violations) remains the live risk area.

Common questions

Q: How long does a Delaware public body have to allow for public comment?
A: FOIA does not set a minimum number of minutes. It requires a "meaningful opportunity to engage." Two minutes per speaker is widely accepted. Some bodies use three or five. There is no Delaware case requiring more than that.

Q: Can the council interrupt or shut down a speaker?
A: Reasonable time, place, and manner restrictions are allowed (time limits, no profanity, on-topic content). Cutting off speakers based on viewpoint is a First Amendment problem, not strictly a FOIA problem. Best practice: clear written rules, applied evenly.

Q: Are councilmembers allowed to respond during public comment?
A: FOIA does not require it and does not prohibit it. The Town's no-rebuttal rule protects orderly time management; some councils prefer to engage briefly. Either choice is FOIA-compliant.

Q: What does an executive-session notice have to say?
A: A "statement of intent to hold an executive session" plus "the specific ground or grounds therefor under § 10004(b)." The Court of Chancery (O'Neill v. Middletown) accepted "Personnel & Legal Issues" as sufficient. Citing the subsection (e.g., (b)(2) for personnel, (b)(4) for real property strategy, (b)(9) for pending or potential litigation) plus a topical description is the safe practice.

Q: Does the public have a right to know who or what is being discussed in executive session?
A: No. Executive session is by definition private discussion of categories the General Assembly decided can be discussed privately. The agenda only has to identify the legal category and topic.

Q: Can I challenge a public-comment rule in court?
A: Section 10005(b) gives you 60 days to file in Superior Court. The First Amendment may also constrain extreme rules (viewpoint discrimination, total bans), but a two-minute, no-rebuttal time limit is unlikely to be unconstitutional.

Background and statutory framework

Public comment as a meaningful opportunity. Section 10004(a)(2) says public comment "must provide a meaningful opportunity for the public to engage with the public body." Delaware's General Assembly added this language in recent FOIA amendments to ensure public bodies actually allow comment, not just nominally hold a comment period. The AG read "meaningful" as requiring that the public can speak; it does not require that the body must answer.

Agenda specificity for executive sessions. Section 10002(a) defines "agenda" as a document that includes the major issues expected to be discussed plus, when applicable, "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b)." The Court of Chancery in O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007), said that the public body "does not require [the body] to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed." A statutory citation with a brief topical reference is enough.

Burden of proof. Section 10005(c) puts the burden on the public body. Where the public body's response is brief but adequate (here, the agenda itself plus a Council President's affidavit), the burden is met without elaborate sworn statements. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), still applies, but its bite is sharper for record-search disputes than for facial-agenda disputes.

The interaction with vague-agenda cases. Section 10002(a) also requires "a general statement of the major issues expected to be discussed at a public meeting." Cases like Op. 22-IB10 (Joe Berg v. Village of Ardencroft) and Op. 21-IB21 (William Pickett v. Indian River School District) found violations where bodies hid known substantive votes behind vague headings. Skis did not raise that argument here. Future challenges to Ellendale's regular-business items, as opposed to the public-comment and executive-session pieces, would be analyzed under that vaguer-agenda line.

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