Can a Delaware public body cure a missing public-comment item on the agenda by orally adding it before the meeting starts?

Plain-English summary

The Association of Coastal Towns (ACT) met on December 13, 2024. Jennifer Pawloski petitioned the Delaware AG because the meeting agenda did not announce a public-comment period. She also raised ACT's handling of a motion about old minutes and its vote to dissolve.

ACT acknowledged that it had left public comment off the agenda but said the Mayor verbally added it before the meeting began. The AG found a FOIA violation anyway. A public-comment period must be listed on the agenda so people can decide in advance whether to attend, and a body cannot add a new item at the start of a meeting to satisfy that notice requirement.

The AG did not decide whether ACT should have recreated past minutes or whether it could dissolve. The meeting recording indicated that ACT had voted to dissolve effective December 31, 2024. The AG made no further remediation recommendation and pointed Pawloski to the statutory time limit for a citizen suit. The opinion says actions at a meeting held in violation of FOIA may be voidable by the Court of Chancery, with invalidation reserved for limited circumstances; it did not decide the validity of this dissolution vote.

What this means for you

If you prepare a public body's agenda

Put the public-comment period on the posted agenda. This opinion held that offering comment after a verbal announcement at the meeting did not cure its absence from the advance agenda. The AG treated the chance to decide whether to attend as part of the public's notice right.

If your public body is ending its work

ACT's vote to dissolve did not erase the AG's finding that the agenda violated FOIA. The AG made no further recommendation after noting the vote and its effective date. The opinion leaves questions about the body's authority to dissolve and the vote's legal effect to other proceedings.

If you discover an agenda omission

You can point to the agenda and the timing of any attempted amendment. Pawloski's petition produced a finding that ACT violated FOIA, although the AG did not recommend a further remedy. Section 10005(a), quoted in the opinion, sets time limits for a citizen who wants to challenge the validity of an action in court.

Common questions

Q: Why did a verbal announcement before the meeting fail? A: The public-comment opportunity had to be on the agenda so citizens could decide whether to attend. ACT acknowledged the omission. The AG held that a new item could not be added at the start of the meeting to provide the required advance notice.

Q: Did the AG invalidate ACT's dissolution vote?
A: No. The AG made no further recommendation. It said a court may void an action taken at a meeting that violated FOIA, but invalidation is a serious remedy and the opinion did not determine that it was warranted here.

Q: Did the AG decide whether ACT could dissolve?
A: No. The office said it was charged with deciding FOIA violations and lacked authority to address the body's decision to dissolve rather than come into compliance with FOIA.

Q: What deadline did the opinion quote for a citizen suit? A: Section 10005(a) permits a challenge within 60 days after a citizen learns of the action, but never later than six months after the action. The opinion encouraged Pawloski to promptly review whether she wished to pursue that route.

Q: Did the AG order ACT to recreate old meeting minutes? A: No. The petition mentioned ACT's refusal to create past minutes, but the opinion made no finding or remedial recommendation on that point.

Citations

• 29 Del. C. § 10004(a): time for public comment at an open meeting.
• 29 Del. C. § 10004(e)(6): final agenda timing, cited in footnote 6.
• 29 Del. C. § 10005(a): court challenge and time limits.
• Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986): cited in footnote 9 on invalidation.

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/01/21/25-ib05-1-21-25-foia-opinion-letter-to-jennifer-pawloski-re-association-of-coastal-towns/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/01/Attorney-General-Opinion-No.-25-IB05.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400
820 NORTH FRENCH STREET
FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB05

January 21, 2025

VIA EMAIL

Jennifer Pawloski
[email protected]

RE: FOIA Petition Regarding Association of Coastal Towns

Dear Ms. Pawloski:

We write in response to your correspondence alleging that the Association of Coastal Towns (“ACT”) violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat your 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. For the reasons set forth below, we determine that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

BACKGROUND

The Association of Coastal Towns held a meeting on December 13, 2024. Your Petition alleges that ACT violated FOIA by failing to include notice of a public comment period in its agenda. In addition, you assert that ACT failed to second a motion to recreate meeting minutes and voted to dissolve their organization at this meeting.

On December 18, 2024, ACT, through its legal counsel, replied to the Petition (“Response”). ACT states that the public comment period was inadvertently omitted from the agenda, but the Mayor verbally amended the agenda to include public comment before the meeting began.
DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA.1 In certain circumstances, a sworn affidavit may be required to meet that burden.2

FOIA mandates that public bodies meet specific requirements when holding public meetings, including advance notice, posting notices and agendas, an opportunity for public comment, and maintaining meeting minutes.3 “As a part of the requirements to hold an open meeting, Section 10004(a) states that a ‘meeting that is open to the public under paragraph (a)(1) of this section must include time for public comment.’”4 This public comment period must appear as an item on the agenda.5 ACT acknowledges its agenda did not include a public comment period, and FOIA does not permit a new item to be added at the outset of a meeting.6 As such, we find a violation occurred.

The Petition also references the actions of ACT at that meeting, including ACT’s refusal to create past meeting minutes and the vote to dissolve the organization. This Office is statutorily charged with opining on FOIA violations and is not empowered to address a public body’s decision to dissolve rather than come into compliance with FOIA.7

Having found that ACT violated FOIA by failing to appropriately notice the public comment period in the agenda, 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.8 The Delaware Court of Chancery stated that the

1
29 Del. C. § 10005(c).
2
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
3
29 Del. C. § 10004.
4
Del. Op. Att’y Gen. 24-IB26, 2024 WL 4009114, at 3 (Jun. 26, 2024).
5
Id. (“A public comment period is a major issue for discussion, and citizens must receive public notice of their opportunity for public comment so they can decide whether they wish to attend the meeting. As such, we also find that the City further violated FOIA by failing to notice time for public comment on its agendas for each of these meetings.”). 6 29 Del. C. § 10004(e)(6) (requiring final agendas be posted no later than six hours before a meeting); see also Del. Op. Att’y Gen. 19-IB48, 2019 WL 5208244, at 3 (Sept. 9, 2019) (“A public body may not simply amend its agenda at the meeting to adopt a new item.”). 7 See 29 Del. C. § 10005.
8
Id.

2
“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.”9 In this case, the December 13, 2024 meeting recording submitted with this Petition indicated that ACT voted at this meeting to dissolve, effective as of December 31, 2024. Thus, we make no further recommendations.

To the extent you wish to pursue legal remedies or enforcement, you are encouraged to promptly review whether you wish to file suit under Section 10005. Section 10005(a) provides that “[a]ny citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen’s learning of such action but in no event later than 6 months after the date of the action.”

CONCLUSION

For the foregoing reasons, we conclude that ACT violated FOIA by failing to provide notice of the public comment period on its December 13, 2024 meeting agenda.

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 E. Liguori, Attorney for the Association of Coastal Towns

9
Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986).

3