Can a Delaware village hold a 'briefing' or 'informational session' the night before a public vote without giving FOIA notice, or does that count as an open meeting?

Plain-English summary

The Village of Arden is governed by a Town Assembly that consists of all village residents. The Town Assembly was scheduled to vote on the Schroeder Trust at its June 24, 2024 meeting. Three days earlier, the Village emailed residents who had registered on the website to invite them to a June 23, 2024 "informational session" about the Schroeder Trust. About ten people attended, including the Town Assembly Chair. No formal FOIA notice was given for this June 23 session.

Carol DiGiovanni petitioned the AG, arguing that the informational session was effectively a meeting on public business and should have been noticed under FOIA. The Village responded with a sworn affidavit from the Chair, asserting that the session was not a meeting of any public body, that no decisions or changes were made, and that the session was just a clarifying discussion for residents who wanted more detail before the formal vote.

The AG agreed in principle that informational sessions can fall outside FOIA, but ruled against the Village on the burden of proof. Two-step analysis under § 10002(k):

1. Is the entity a "public body"? Includes regulatory, administrative, advisory, executive, appointive, or legislative bodies, plus committees, advisory boards, panels, councils, and "any other entity or body" appointed or empowered by a state or political-subdivision body.
2. Is it supported by public funds, expending public funds, or impliedly charged to advise/report/investigate/recommend?

To apply that test, the AG needed information about who attended the June 23 session, in what roles, and how the group was formed. The Village's affidavit said only that ten people attended including the Chair. Was a quorum of the Town Assembly there? Were Advisory Committee members present? Was this a regular practice the Village holds before votes? The AG did not have answers, so the Village could not satisfy its burden under § 10005(c) to prove the session was not subject to FOIA.

Citing Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist. (Del. Ch. 1990), the AG quoted: "policy decisions" by public bodies "are best understood as a decisional process based on inquiry, deliberation and consensus building" and "[b]ecause informal gatherings or workshops are part of the decision-making process they too must be conducted openly." That principle pulls borderline workshops into FOIA's reach unless the public body affirmatively demonstrates otherwise.

The AG recommended that the Village discuss the Schroeder Trust topic again and ratify the vote at a later FOIA-compliant meeting.

What this means for you

If you serve on a Delaware village, town, or small public board

The opinion holds that a pre-vote "informational session" can be a public meeting subject to FOIA, and that the burden is on the public body to show it is not. The Village lost not because the AG found the session was a public meeting, but because its affidavit did not give the AG enough to apply the § 10002(k) public-body test: who attended, in what roles, and how the group was formed. The opinion stresses, quoting Levy, that "informal gatherings or workshops [that] are part of the decision-making process . . . too must be conducted openly."

If you are a Delaware resident who attended a pre-vote session that was not noticed

The opinion confirms that discussion of a matter set for a later vote is "public business" under § 10002(m), and that whether the gathering had to be noticed turns on the two-part public-body analysis. Because the Village did not supply the facts needed to apply that test, the AG was "compelled to find that a violation occurred." The remedy the AG recommended was prospective: discuss the topic again and ratify the vote at a future FOIA-compliant meeting.

What the opinion did not decide

The AG did not find that the June 23 session definitely was a public body, and it did not invalidate the Schroeder Trust vote. Under § 10005(a), the authority to void an action taken in violation of FOIA is reserved to the Court of Chancery; the AG can only recommend a fix.

Common questions

Q: What is a "public body" under Delaware FOIA?
A: The opinion applies a two-part test from § 10002(k): first, whether the entity is a regulatory, administrative, advisory, executive, appointive, or legislative body (including a committee, advisory board, panel, council, or "any other entity or body" established, appointed, or empowered by a state governmental entity); and second, whether it is supported by or expends public funds, or is impliedly or specifically charged to advise, report, investigate, or recommend.

Q: Can a pre-vote informational session fall outside FOIA?
A: The opinion accepts that the relevant question is whether the session was a meeting of a public body, but it holds that the public body must supply the facts (attendees, their roles, how the group was formed) to make that determination. Here the record was insufficient, so the AG found a violation.

Q: What did the Levy decision contribute?
A: The opinion quotes Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist. (Del. Ch. 1990) that policy decisions "are best understood as a decisional process based on inquiry, deliberation and consensus building" and that "informal gatherings or workshops" that are part of that process must also be conducted openly.

Q: Does the AG's ratification recommendation mean the Schroeder Trust vote is invalid now?
A: No. The opinion explains that under § 10005(a) only the Court of Chancery may void an action, and it cites Ianni (Del. Ch. 1986) and Chem. Indus. Council (Del. Ch. 1994) on when invalidation is appropriate. The AG recommended the Village re-discuss and ratify the vote at a future compliant meeting.

Background and statutory framework

Two-prong public body definition. Section 10002(k) defines "public body" with two cumulative requirements. First, the entity must be one of the listed types: regulatory, administrative, advisory, executive, appointive, or legislative body, or a committee, advisory board, panel, association, group, council, or "any other entity or body" appointed or empowered by a public body or official. Second, the entity must be supported (in whole or in part) by public funds, expend or disburse public funds, or be "impliedly or specifically charged" to advise, report, investigate, or recommend. Op. 18-IB28 (June 2018) is the AG's prior articulation of this two-step analysis.

Decisional-process doctrine. Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *6 (Del. Ch. Oct. 1, 1990), is the foundational Delaware case. The Court of Chancery rejected the idea that public bodies could conduct decision-making through informal "workshops" outside FOIA. The opinion's framing, that "policy decisions . . . are best understood as a decisional process based on inquiry, deliberation and consensus building," now anchors FOIA analysis of pre-vote sessions, briefings, and orientations.

Public business. Section 10002(m) defines public business as "any matter over which the public body has supervision, control, jurisdiction or advisory power." The Schroeder Trust vote was clearly public business. That gets you to the threshold; the remaining question is whether the gathering was a meeting of a public body.

Burden of proof. Section 10005(c) places the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), requires sworn evidentiary support. The Village's affidavit was insufficient because it did not address the factors needed to apply § 10002(k): attendee identity, roles, group formation, public-resource support, and functional role in the decisional process.

Remediation. Section 10005(a) reserves invalidation to the Court of Chancery. The AG recommends prospective compliance and ratification at a future open meeting. Ianni v. Dep't of Elections (Del. Ch. 1986) describes invalidation as "a serious sanction"; Chem. Indus. Council (Del. Ch. 1994) requires the court to consider "adverse consequences upon innocent parties." A trust vote affecting beneficiaries is a typical fact pattern where ratification is preferred over invalidation.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions, including "public body" and "public business")
• 29 Del. C. § 10004 (Open meeting requirements)
• 29 Del. C. § 10005 (Enforcement, burden of proof, voidable actions)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147 (Del. Ch. Oct. 1, 1990)
• Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)

Prior AG opinions:

• Del. Op. Att'y Gen. 18-IB28 (June 1, 2018) (two-prong public-body analysis)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/07/26/24-ib28-07-26-2024-foia-opinion-letter-to-carol-digiovanni-re-foia-complaint-concerning-village-of-arden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/07/Attorney-General-Opinion-No.-24-IB28.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

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-IB28
July 26, 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 violated FOIA by failing to meet its burden to demonstrate the June 23, 2024
meeting was not subject to the open meeting requirements of FOIA.

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. 1 The Town scheduled a June 24, 2024 Town
Assembly meeting to vote on the Schroeder Trust. The Petition alleges that the June 4, 2024
Advisory Committee meeting minutes indicated that a public meeting would be held to discuss the
Schroeder Trust before the scheduled vote. A few days prior to the Town Assembly meeting, the
Village sent an email to invite residents to attend an informational session about the Schroeder Trust
on June 23, 2024. The Petition alleges that this informational session was not properly noticed in
accordance with FOIA.
On July 2, 2024, legal counsel to the Town Assembly Chair replied to the Petition on the
Village's behalf ("Response") and included the Chair's affidavit attesting that the factual
1

Arden, Del., C. (Charter) § 4.

statements in the Response were true and correct to the best of his knowledge and belief. The
Village states that the June 24, 2024 Town Assembly meeting to approve the Schroeder Trust was
properly noticed, and the Village scheduled this informational session in advance of the meeting.
The invitation to the meeting indicates the Trust document had been sent out and discussed at
multiple Village meetings and that the information session was offered for "those interested in
discussing the document in more detail prior to [the] Town Meeting."2 The Village asserts that
this "session was not a public body (neither committee or town assembly meeting involved) and
only involved presenting information and providing clarity to those who wanted it" and that "[n]o
decision and no changes to the document were being considered."3 The Village states that it
emailed the meeting invitation to those residents who registered on the website three days prior to
the meeting and approximately ten people, including the Chair, attended.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 4 In certain
circumstances, a sworn affidavit may be required to meet that burden. 5 To advance FOIA's
objective of transparency, FOIA mandates that public bodies meet specific requirements when
holding public meetings to discuss or take action on public business, including allowing public
access, posting advance notice and an agenda, permitting an opportunity for public comment, and
maintaining meeting minutes. 6
In this case, the Village held an informational session about the Schroeder Trust. As the
topic was scheduled for a later vote by the full Town Assembly, discussion of the Schroeder Trust
clearly constitutes public business under the jurisdiction of the Village. 7 The Delaware Court of
Chancery has emphasized that policy decisions by public bodies "are best understood as a
decisional process based on inquiry, deliberation and consensus building" and "[b]ecause
informal gatherings or workshops are part of the decision-making process they too must be
conducted openly." 8

2

Response, Ex. 2.

3

Id., p. 2.

4

29 Del. C. § 10005(c).

5

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

6

29 Del. C. § 10004.

7

29 Del. C. § 10002(m) ("'Public business' means any matter over which the public body
has supervision, control, jurisdiction or advisory power.").
8

Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *6 (Del. Ch. Oct.

1, 1990).
2

The relevant inquiry here is whether this informational session constituted a meeting of a
"public body," as defined by FOIA. To make this determination, a two-part analysis is required. 9
The first inquiry is whether the entity is a "regulatory, administrative, advisory, executive,
appointive or legislative body of the State, or of any political subdivision of the State," which
includes a ". . . committee, . . . advisory board and committee . . . association, group, panel,
council, or any other entity or body established by an act of the General Assembly of the State,
or established by any body established by the General Assembly of the State, or appointed by any
body or public official of the State or otherwise empowered by any state governmental entity."10
If the first part is met, we then must determine whether the entity is supported in whole or in part
by any public funds, expends or disburses any public funds, or "is impliedly or specifically
charged by any other public official, body, or agency to advise or to make reports, investigations
or recommendations." 11
To determine whether the informational session was a meeting of a public body, we
require the information necessary to apply the statutory definition of public body, such as the
meeting attendees and their roles, and how the meeting group was formed. As the burden is on
the public body to establish FOIA compliance for this meeting and we find the information in the
record is insufficient to make this determination, we are compelled to find that a violation
occurred.
Having found that the Village violated FOIA, we consider whether any remediation is
appropriate to recommend. Section 10005(a) states that any "action taken at a meeting in
violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate
a public body's action, or to impose other relief, is reserved for the courts. 12 The Delaware Court
of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be
employed unless substantial public rights have been affected and the circumstances permit the
crafting of a specific remedy that protects other legitimate public interests." 13 In determining
whether invalidation is appropriate, the court will consider the impact of "adverse consequences
upon innocent parties." 14 In this case, we recommend that the Village discuss this topic of the
Schroeder Trust and ratify the vote at a future meeting held in compliance with FOIA's open
meeting requirements.

9

Del. Op. Att'y Gen. 18-IB28, 2018 WL 2994706, at *1 (Jun. 1, 2018).

10

29 Del. C. § 10002(k).

11

Id.

12

29 Del. C. § 10005.

13

Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29,

1986).
14

Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL
274295, at *15 (Del. Ch. May 19, 1994).
3

CONCLUSION
Based on the foregoing, we conclude that the Village violated FOIA by failing to meet
its burden to demonstrate the June 23, 2024 meeting was not subject to the open meeting
requirements of 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:

Edward B. Rosenthal, Attorney for the Village of Arden

4