DE 24-IB15 2024-04-22

If a Delaware village holds a regular meeting and a resident says the bulletin-board notice was missing on a specific date, but the village's secretary swears she posted it earlier, who wins?

Short answer: The Village wins. The Village of Arden's Town Assembly Secretary attested under oath, with corroboration from a resident witness, that she posted the March 25, 2024 meeting notice on the Gild Hall bulletin board on March 11, 2024 and reposted it on March 22, 2024 after the petition. The AG ruled that on this factual record, no FOIA violation occurred.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

24-IB15 04/22/2024 FOIA Opinion Letter to Carol DiGiovanni re: FOIA Complaint Concerning the Village of Arden

Plain-English summary

The Village of Arden Charter requires the Town Assembly to hold four regular meetings a year and to mail meeting notice to all residents (Arden Charter § 4, § 5). FOIA also requires "conspicuous posting" of the notice at the principal office of the public body, or at the place where meetings are regularly held (29 Del. C. § 10004(e)(5)).

Carol DiGiovanni filed a FOIA petition alleging that as of March 21, 2024, no meeting notice for the upcoming March 25, 2024 Town Assembly meeting was posted on the Gild Hall bulletin board. She had received the mailed notice and the website posting; the issue was the physical bulletin-board posting. She submitted a photograph from March 21 showing the empty board.

The Village's counsel responded with two affidavits. The Town Assembly Secretary attested that she posted the meeting notice on the Gild Hall bulletin board on March 11, 2024, and again on March 22, 2024, after being alerted via the petition that the notice was missing. She also stated under oath that she posted the meeting notice on the website on March 11, 2024 and mailed notice to all residents on March 10, 2024. A second affidavit from an Arden resident attested to witnessing the Secretary post the notice on the bulletin board on March 11.

The AG accepted the affidavits. Either the notice was posted and subsequently removed by someone else (a wind, a passerby, weathering), or DiGiovanni's photograph was taken in a moment when the posting was momentarily missing for unrelated reasons. The Secretary's prompt reposting on March 22 (after being alerted) addressed any ambiguity. On the factual record, the AG found no violation.

What this means for you

For Delaware municipal clerks and secretaries. Document each posting with a photograph at the time of posting and, when possible, a witness. Keep a posting log noting date, time, and who saw it. AG 24-IB15 confirms that contemporaneous documentation defeats most "missing notice" challenges. If a resident reports a missing notice, repost immediately and document the repost. The AG accepted the Village's "post and repost" approach.

For Delaware municipal residents who notice missing postings. A photograph of an empty bulletin board, standing alone, is not conclusive. The notice may have been posted earlier and removed for reasons unrelated to the public body. Before filing a petition, contact the public body and ask for verification. If the body cannot or will not produce evidence of timely posting, then file. AG 24-IB15 shows that an affidavit from someone with personal knowledge of the posting will likely defeat a photograph alone.

For Delaware public bodies operating with volunteer staff. Arden's Town Assembly Secretary is a volunteer post. The bulletin-board posting practice is itself volunteer-administered. AG 24-IB15 implicitly accepts that small-municipality processes can have edge-case issues (a notice falls off, a passerby removes it) and that good-faith documentation is what matters.

For Arden specifically. The 24-IB15 ruling closes one of the chain of FOIA petitions involving Arden's Charter-amendment process (24-IB13 found a notice violation; 24-IB17 declined to decide a Charter question; 24-IB15 found no violation; 23-IB20 found no violation). The pattern: detailed documentation wins; bare assertions of impropriety lose.

Common questions

What's "conspicuous posting" under FOIA?
29 Del. C. § 10004(e)(5) requires meeting notice to be "conspicuously posted at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held." The standard is that the notice be visible to a reasonable person attempting to locate it. A bulletin board at the regular meeting location is a classic conspicuous posting venue.

What if the notice is removed by a third party?
The public body's obligation is to post. It is not strictly liable if a third party tampers with the posting. But once the body knows or should know the posting is missing, it has an obligation to repost. Arden's prompt repost after DiGiovanni's petition was the right response.

Why didn't DiGiovanni's photograph win?
A single-moment photograph proves only that the notice was missing at one moment. It does not prove the notice was never posted. The Village's affidavit said the posting was made on March 11, and a witness corroborated. The combined picture is that the notice was probably posted on March 11, then went missing at some point before March 21. The AG did not need to identify why it went missing to conclude there was no FOIA violation.

What's the difference between this and AG 24-IB13 (the other DiGiovanni / Arden case)?
24-IB13 was about a special Advisory Committee meeting that was noticed less than seven days in advance without a written explanation; that violated § 10004(e)(4). 24-IB15 is about a regular Town Assembly meeting where the notice was timely; the dispute was only whether it was actually conspicuously posted. The Village won 24-IB15 because the affidavits established the posting; it lost 24-IB13 because the agenda lacked the required explanation.

Could the Village do better in the future?
Possibly. Two upgrades would make future petitions even easier to defeat: (1) a posting log with timestamps and (2) a sealed plastic sleeve or laminated notice that resists weather and casual removal. Most Delaware municipalities use both.

Was there any sense the petitioner acted in bad faith?
The opinion does not so allege. DiGiovanni had previously filed AG 24-IB13 (which she won). She is an active observer of Arden governance. The 24-IB15 petition was a good-faith claim that turned out to be unsupported.

Background and statutory framework

29 Del. C. § 10004(e)(5) requires conspicuous posting of meeting notices.

29 Del. C. § 10005(c) places the burden on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit may be required; affidavits with personal knowledge from the affiant carry weight.

The Arden Charter § 4 (Town Assembly composition) and § 5 (mailed notice requirement) supplement FOIA's posting requirement. The Charter requires mailed notice; FOIA requires conspicuous physical posting. The Village complied with both.

Citations

29 Del. C. § 10004(e)(5): conspicuous posting
29 Del. C. § 10005, § 10005(c): petition; burden of proof
29 Del. C. §§ 10001-10008: Delaware FOIA chapter
Arden, Del., C. (Charter) § 4: Town Assembly composition
Arden, Del., C. (Charter) § 5: mailed notice requirement
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Source

Original opinion text

KATHLEEN JENNINGS

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. 24-IB15
April 22, 2024

VIA EMAIL
Carol DiGiovanni
[email protected]

RE: FOIA Petition Regarding the Village of Arden

Dear Ms. DiGiovanni:
We write in response to your correspondence alleging that the Village of Arden 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 find that the Village did not violate FOIA by failing to post notice of its March 25, 2024 meeting.

BACKGROUND
The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village. The Village Charter requires the Town Assembly to hold four regular meetings a year and to mail the meeting notice to all residents. You filed this Petition alleging that the Village failed to properly post notice of the March 25, 2024 Town Assembly meeting as required by FOIA. You state that the Town Assembly meetings are held at the Gild Hall or another appropriate location. For the March 25, 2024 Town Assembly meeting, you assert that you received the mailed meeting notice, and the notice was posted to the website, but when you visited the bulletin board at Gild Hall, no meeting notice was posted, which constitutes a violation of FOIA. You submitted a photograph that you took on March 21, 2024 as proof of your claim.

On April 2, 2024, the Village's counsel replied to the Petition ("Response") and attached two affidavits. In the first affidavit, the Secretary of the Town Assembly attests that she posted the notice of this meeting on the Gild Hall bulletin board on March 11, 2024, and again on March 22, 2024, after being alerted through this Petition that the notice was missing. The Secretary also states under oath that she posted the meeting notice on the website on March 11, 2024 and mailed notice of the meeting to all residents on March 10, 2024. In the second affidavit, an Arden resident attests to witnessing the Village Secretary post the notice of the meeting on the Gild Hall bulletin board on March 11, 2024.

DISCUSSION
The 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. In this case, the Petition claims that the Town Assembly violated FOIA by failing to post notice of its March 25, 2024 Town Assembly meeting at Gild Hall. FOIA requires the "conspicuous posting of [the meeting] notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held." The Village presented sworn statements that the Village Secretary did, in fact, post the meeting notice on the Gild Hall bulletin board on March 11, 2024, and when alerted that the notice was missing, the Village Secretary promptly reposted notice of the meeting. On this factual record, we do not find a violation of FOIA.

CONCLUSION
Based on the foregoing, we conclude that the Village did not violate FOIA by failing to post the notice of its March 25, 2024 Town Assembly meeting as required by 29 Del. C. § 10004(e)(5).

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

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

cc: Edward B. Rosenthal, Attorney for the Town Assembly, Village of Arden