What are the notice rules for a Delaware public body holding a virtual meeting, and what counts as proper agenda notice for the meeting where they vote to dissolve?

Plain-English summary

Edward Bintz challenged the Association of Coastal Towns' (ACT) notice and agenda for its December 13, 2024 meeting. He objected to descriptions of the proposed dissolution and an earlier AG opinion, the absence of a public-comment item, and late notice of the meeting's location and virtual access. He also raised earlier issues about ACT's FOIA procedures.

The AG found the agenda descriptions sufficient to alert interested residents that ACT would consider dissolving and would address the earlier opinion. It did not review whether the agenda's background account was substantively accurate. The agenda nevertheless violated FOIA because it omitted a public-comment period. ACT's chair announced that comments would be accepted before the meeting, but the AG held that a new agenda item could not be added at the outset.

ACT's virtual-meeting notice also violated FOIA. The December 6 posting said the meeting would be “via Zoom” and that access information would follow, but it identified no physical anchor location or virtual access details. A December 9 revision added both for the December 13 meeting. The AG held that the required notice, including the anchor location and virtual monitoring or participation information, had to be posted at least seven days in advance. The statute's limited flexibility to add or amend agenda items closer to a meeting did not extend that notice deadline.

ACT's response said it was dissolved. The AG made no further remediation recommendation and quoted the statutory time limits for a citizen suit. It did not invalidate ACT's dissolution or decide the petition's separate claims about ongoing FOIA administration.

What this means for you

If you arrange a virtual meeting

Post the physical anchor location and instructions for virtual monitoring or participation with the meeting notice at least seven days before the meeting. ACT's promise that Zoom details would follow, and its later revision, did not meet that deadline. The opinion describes an anchor location as a public physical space in the body's geographic jurisdiction where at least one member attends.

If you draft an agenda

List the public-comment period so people know in advance that they can attend and speak. ACT's chair offered comments verbally, but the omission from the agenda still violated FOIA. The opinion also distinguishes an agenda's notice of a subject from the factual accuracy of additional background text.

If you want to challenge a meeting action

The AG found notice violations but did not void ACT's vote. The opinion states that a court may void an action taken at a meeting held in violation of FOIA, while calling invalidation a serious remedy. It quotes § 10005(a)'s 60-day period after learning of an action and six-month outer limit for a citizen suit.

Common questions

Q: Was ACT allowed to post the Zoom link four days before the meeting? A: The December 9 revision supplied location and virtual access information, but it was less than seven days before the December 13 meeting. The AG found that the late notice violated FOIA.

Q: Why was a physical location needed for a virtual meeting? A: The opinion says § 10006A then required an anchor location for virtual meetings outside its emergency provisions: a public space within the body's jurisdiction where one or more members attend. ACT's initial notice identified no such place.

Q: Could ACT add public comment verbally before starting? A: No. The AG held that the comment period had to appear on the agenda and that a new item could not be added at the outset of the meeting.

Q: Did the AG accept the agenda's dissolution description? A: Yes. The agenda gave interested residents notice of a possible vote to dissolve and return unused dues. The AG also found its reference to the earlier opinion sufficient notice of discussion about that opinion's recommendations. It did not judge the accuracy of added background detail.

Q: Did the AG order a new meeting or invalidate the vote? A: No. ACT said it was dissolved, and the AG made no further recommendation. The opinion says only a court can invalidate an action or award other relief.

Citations

• 29 Del. C. § 10002(a): agenda's general statement of major issues.
• 29 Del. C. § 10004(a): public-comment time at an open meeting.
• 29 Del. C. § 10004(e)(2): seven-day meeting-notice rule.
• 29 Del. C. § 10004(e)(6): limited later posting or amendment of an agenda, discussed in footnote 20.
• 29 Del. C. § 10006A and § 10006A(c): anchor location and virtual access information.
• 29 Del. C. § 10005(a): citizen-suit deadline and potential judicial relief.
• Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986): cited in footnote 22 on invalidation.

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/02/07/25-ib09-2-07-25-foia-opinion-letter-to-edward-e-bintz-re-association-of-coastal-towns/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/02/Attorney-General-Opinion-No.-25-IB09.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-IB09

February 7, 2025

VIA EMAIL

Edward E. Bintz
[email protected]

RE: FOIA Petition Regarding the Association of Coastal Towns

Dear Mr. Bintz:

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, in relation to its December 13, 2024 meeting, violated FOIA by failing to include a time for public comment on its agenda and by failing to timely post the notice of the meeting location and the information for monitoring and participating in the meeting.

BACKGROUND

The Association of Coastal Towns held a public meeting on December 13, 2024. 1 The Petition alleges that ACT included a “Background” section in this meeting agenda that was substantively inaccurate and misleading; that ACT failed to include an agenda item for this Office’s remediation recommendations; that ACT failed to include in its agenda time for public comment; that ACT did not provide notice of the location of the meeting at least seven days in advance; and that ACT has not yet designated a FOIA coordinator, implemented a request policy,

1
Petition. or maintained an online portal for accepting FOIA requests, which are continuations of the violations found in the former Attorney General Opinion No. 24-IB21.

On January 9, 2025, ACT, through its legal counsel, replied to the Petition (“Response”).
ACT argues that the final agenda put the public on notice of the date, time, and location, as well as the items to be discussed, and nothing in the agenda posting was inaccurate or misleading. ACT asserts that the agenda provided notice about the organization’s proposed action to dissolve the organization, and although the agenda omitted the public comment period, the chair made clear before the meeting that public comment would be accepted. ACT contends it had no legal obligation to address the Section 10003 issues that were raised by this Office in Attorney General Opinion No. 24-IB21. ACT’s counsel states that ACT considers itself disbanded.

DISCUSSION

The public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain circumstances, a sworn affidavit may be required to meet that burden. 3 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. 4 These open meeting requirements apply to a “public body.” In Attorney General Opinion No. 24-IB21, this Office previously determined that ACT is a public body, as defined by Delaware’s FOIA law. 5

Sufficiency of ACT’s Agenda Descriptions

The first two claims relate to the sufficiency of ACT’s descriptions in the December 13, 2024 meeting agenda. An agenda for a public meeting must include a “general statement of the major issues” which a public body expects to discuss 6 and must be worded in “plain and comprehensible language.” 7 Delaware courts have opined on the means to determine the sufficiency of an agenda:

2
29 Del. C. § 10005(c).
3
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
4
29 Del. C. § 10004.
5
Del. Op. Att’y Gen. 24-IB21, 2024 WL 3166427, at 3 (May 28, 2024).
6
29 Del. C. § 10002(a).
7
Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 8 (Del. Ch. May 19, 1994).

2
In order that the purpose of the agenda requirement be served, it should, at least, “alert members of the public with an intense interest in” the matter that the subject will be taken up by the [public body].
In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration. . . . FOIA provides an informational right to allow public involvement in government. 8

“[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item.” 9 FOIA is intended to ensure that public business is done in the open, so that citizens may hold public officials accountable. “The purpose of FOIA is not to provide a series of hyper- technical requirements that serve as snares for public officials, and frustrate their ability to do the public’s business, without adding meaningfully to citizens’ rights to monitor that public business.” 10

In this case, the Petition first claims that ACT violated FOIA by including on its meeting agenda a description of the previous Attorney General Opinion that is substantively inaccurate. An agenda item must give adequate notice of the subject expected to be a topic of discussion at the meeting. 11 However, when a public body opts to provide detailed information about that item, FOIA does not give this Office the authority to regulate the substantive accuracy of those more detailed descriptions, beyond ensuring FOIA’s notice requirement for the subject matter is met. 12 Here, we find that the agenda item, “Discussion and Possible Vote to Dissolve the Association of Coastal Towns (“ACT”) as of December 31, 2024 and Return the Unused Dues Funds in Equal Portion to the Seven (7) ACT Member Towns After All Debts Have Been Paid,” was adequate notice of ACT’s discussions about whether to dissolve. A member of the public interested in this subject matter would be able to review this item and determine this item would be under consideration. The recitation of this item’s background is not subject to our review. 13

8
Lechliter v. Del. Dep’t of Natural Res. & Env’t Control, 2017 WL 2687690, at 2 (Del.
Ch. Jun. 22, 2017) (quoting Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at 4 (Del. Ch. Aug. 29, 1986). 9 Del. Op. Att’y Gen. 10-IB12, 2010 WL 4154564, at 1 (Sept. 28, 2010).
10
Lechliter v. Becker, 2017 WL 117596, at 2 (Del. Ch. Jan. 12, 2017).
11
29 Del. C. § 10002(a).
12
29 Del. C. § 10005(e).
13
Lechliter, 2017 WL 2687690, at *2 (“[M]embers of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration.”).

3
In addition, the Petition claims that this same agenda item does not provide adequate notice of the discussions that occurred at the meeting regarding this Office’s recommendations for remediation stated in Attorney General Opinion No. 24-IB21 issued in May 2024. The “Background” section for this agenda item specifically mentions “an opinion issued on May 28, 2024” by the Delaware Attorney General. Again, we find no violation in this regard, as a citizen with an interest how the recommendations in that opinion might be addressed had sufficient notice of this subject matter from the agenda.

Time for Public Comment

The Petition further contends that this meeting agenda failed to include a time for public comment. ACT acknowledges its agenda did not include this comment period, but before the meeting, the chair verbally stated that public comments would be accepted. “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.’” 14 This public comment period must appear as an item on the agenda. 15 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. 16 As such, we find a violation occurred.

Meeting Notice

The Petition also alleges that ACT initially noticed this meeting as a fully virtual meeting but failed to timely post the location of the meeting. The meeting notice posted on December 6, 2024 states the meeting will be held “via Zoom” and did not note any physical location in that notice, instead stating “Zoom Information to follow on Monday, December 9, 2024.” 17 On December 9, 2024, the revised notice was posted, stating the physical location of the meeting, along with the Zoom information and call-in number.

FOIA requires that a meeting notice be posted at least seven days in advance of a meeting.
This notice is to include the agenda, if it has been determined, and the date, time, and place of the meeting, including whether the meeting would be conducted under the virtual meeting provisions

14
Del. Op. Att’y Gen. 24-IB26, 2024 WL 4009114, at 3 (Jun. 26, 2024).
15
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.”). 16 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.”). 17 Petition, Ex. B.

4 in Section 10006A. 18 Currently and at the time of ACT’s December meeting, Section 10006A required virtual meetings to have an “anchor location,” which is the physical meeting space within the geographic jurisdiction of public body that is open to the public and at which one or more members of a public body attend the virtual meeting. 19 Section 10006A(c) also requires that the meeting notice include “information regarding how the public can monitor or participate in the meeting under paragraph (c)(6) of this section.” Thus, the meeting notice for a virtual meeting must include both the meeting’s anchor location and information about how the public can virtually monitor and participate in the meeting.

This meeting notice posted on December 6, 2024 indicated it would be a virtual meeting but included neither the meeting’s anchor location nor the information for virtually monitoring or participating in the meeting. The December 9, 2024 revised notice was updated to include the requisite information but was posted less than seven days prior to the meeting. While the statute affords additional time for the posting of an agenda in certain circumstances, such flexibility is not permitted for the notice detailing the meeting’s date, time, location, and virtual monitoring and participation information, where applicable. 20 As such, we determine that ACT violated FOIA by failing to post a notice with the December 13, 2024 meeting’s anchor location and virtual meeting information at least seven days in advance of the meeting.

Recommendations

Having found that ACT violated FOIA, we consider whether any remediation is appropriate to recommend. Section 10005(a) states that any “action taken at a meeting in violation

18
29 Del. C. § 10004(e)(2).
19
29 Del. C. § 10006A (requiring virtual meetings, that are not held under subsections (e) or (f) for a state of emergency or preventing a public health emergency, to have an anchor location). 20 29 Del. C. § 10004(e)(6) (“When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.”); see Del. Op. Att’y Gen. 17-IB38, 2017 WL 3628771, at 5 (Aug. 11, 2017) (“FOIA provides flexibility for a public body to amend the agenda up to six hours prior to a meeting to add items that come up suddenly and cannot be deferred to a later meeting.”) (citation omitted); Del. Op. Att’y Gen. 17-IB15, 2017 WL 3426253, at 6 (July 7, 2017) (citing a three-step test for determining if an agenda was properly amended six hours in advance of a public meeting: 1) the amended agenda must adequately describe the new items and be posted at least six hours in advance of the meeting; 2) the amended agenda must include a brief statement describing the reason for delay; and 3) the public body must be able to make a showing that each new matter of public business came up unexpectedly after the initial posting and required immediate attention); Del. Op. Att’y Gen. 07- IB10, 2007 WL 4732793, at *2 (May 10, 2007) (stating that our Office has cautioned that Section 10004(e)(5) does not allow a public body to amend the agenda up to six hours prior to the meeting for any reason, but it permits the addition of items up to six hours before the meeting that come up suddenly and cannot be deferred to a subsequent meeting) (citation omitted).

5 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. 21 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.” 22 ACT’s Response indicates that ACT is dissolved. 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, in relation to its December 13, 2024 meeting, violated FOIA by failing to include a time for public comment on its agenda and by failing to timely post the notice of the meeting location and the information for monitoring and participating in the meeting.

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

21
29 Del. C. § 10005.
22
Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986).

6