DE 25-IB09 2025-02-07

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?

Short answer: The agenda must include a public comment period (verbally adding it at the meeting does not work), and the meeting notice must include both an anchor physical location AND virtual participation information at least seven days in advance. ACT failed both, in addition to other procedural rules. Because ACT had voted to dissolve, no further remediation was recommended.

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 AG opinions are persuasive authority but not binding precedent.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.

Plain-English summary

Edward Bintz petitioned about the same December 13, 2024 Association of Coastal Towns meeting that prompted petition 25-IB05 (Pawloski). His allegations were broader: missing public comment, missing remediation agenda item, an inaccurate "Background" section in the agenda, late posting of meeting location and virtual participation info, and ACT's continuing failure to designate a FOIA coordinator, implement a request policy, or maintain an online portal.

The Deputy AG ruled in three parts:

Agenda descriptions were adequate. The agenda item "Discussion and Possible Vote to Dissolve the Association of Coastal Towns" gave proper notice. The "Background" recital below it might have been substantively inaccurate, but FOIA does not regulate the substantive accuracy of agenda detail beyond the notice requirement. Citing prior Court of Chancery cases, the AG noted "the point of the agenda is to put the public on notice, not to answer every question about the agenda item."

Public comment violation. Mirroring 25-IB05, the AG found ACT violated FOIA by leaving public comment off the agenda. The Mayor's verbal addition before the meeting did not cure it. FOIA's six-hour-before-meeting amendment window in § 10004(e)(6) does not allow agenda additions at the start of a meeting.

Notice violation for the virtual meeting. ACT initially noticed the meeting on December 6, 2024 as "via Zoom" with no physical location and a promise that "Zoom Information to follow on Monday, December 9, 2024." Two requirements failed:

Section 10006A requires virtual meetings to have an "anchor location" (a physical space within the body's jurisdiction, open to the public, where one or more members attend in person).
Section 10006A(c) requires the notice to include information for the public to monitor or participate virtually.

The December 6 notice had neither. The December 9 revised notice had both, but was posted less than seven days before the December 13 meeting. Section 10004(e)(2) requires meeting notices (with the date, time, place, and virtual-meeting information) to be posted at least seven days in advance. The flexibility for amending the agenda within six hours does not extend to the meeting-notice basics.

ACT had voted at the meeting to dissolve. The AG made no further remediation recommendations.

What this means for you

If you organize virtual or hybrid meetings for a Delaware public body

Two specific rules to bake in. First, your initial notice (posted at least seven business days in advance of the meeting) must already include the anchor physical location AND the link/dial-in for virtual participation. You cannot post the notice now and the Zoom link three days later. Second, a fully online "Zoom only" meeting is not allowed under Section 10006A; you must designate a physical anchor location in your jurisdiction, open to the public, where a member is present. Sections 10006A(e) and (f) carve out exceptions for state of emergency and public-health emergency, but no general "we prefer virtual" exception exists.

If you're an active citizen monitoring small public bodies

Watch for two telltales: notices that say "location TBD" or "virtual link to follow" (often improper under § 10004(e)(2)), and agendas that omit a public comment period (always a violation under § 10004(a)). File petitions promptly; the 60-day clock in § 10005(a) for invalidation suits begins when you learn of the violation.

If you advise an inter-municipal organization or special district

This pattern of FOIA non-compliance was not isolated. ACT had a history (per opinion 24-IB21) of not designating a FOIA coordinator, not implementing a request policy, and not maintaining an online portal. If your client is a small association of municipalities, set up the basic FOIA infrastructure on day one. The 25-IB09 petition could have been mostly avoided with a working agenda template, a notice template that includes anchor location plus virtual participation info, and a standing public-comment item on every agenda.

If you're a public body member who voted to dissolve at a non-compliant meeting

Talk to counsel about whether the dissolution vote can withstand a § 10005(a) invalidation suit if filed within 60 days. Both the AG's office (here in 25-IB09) and the parallel petition (25-IB05) found the meeting was not in compliance. A dissolution invalidated by court order means the body still exists, with all its FOIA obligations, until proper procedures are followed.

Common questions

Q: Why isn't a Zoom-only meeting allowed?
A: Section 10006A requires an "anchor location," meaning a physical space within the body's jurisdiction that the public can attend in person, where one or more members are present. The Legislature wanted to preserve in-person access even when virtual options are added.

Q: Can the meeting notice be updated to add the location later?
A: No, not within seven days of the meeting. The seven-day rule applies to the basic facts (date, time, place, virtual info). Agenda items can be amended up to six hours before, but only if the new item came up suddenly and cannot be deferred.

Q: What's the difference between an "agenda" and a "meeting notice"?
A: They are usually the same document. The agenda lists items to be discussed; the meeting notice includes the date, time, place, and (for virtual meetings) participation info. A combined agenda-and-notice document is fine, as long as it satisfies both sets of requirements at the right times.

Q: How specific does an agenda item need to be?
A: It needs to put a member of the public "with an intense interest in" the matter on notice that the subject will be discussed. Vague items like "old business" or "personnel matters" can fail. Detailed items like the dissolution vote in this case are fine, even if some surrounding background prose is imperfect.

Q: What about state-of-emergency virtual meetings?
A: Sections 10006A(e) and (f) provide carve-outs during a state of emergency or to prevent a public health emergency. Those exceptions are narrow. Outside an emergency declaration, the standard anchor-location and notice rules apply.

Q: What was ACT?
A: An association of seven coastal Delaware towns that pooled member dues and worked on common interests like coastal management. ACT voted to dissolve at the December 13, 2024 meeting effective December 31, 2024.

Citations

29 Del. C. § 10002(a), agenda content requirements
29 Del. C. § 10004, open meeting framework
29 Del. C. § 10004(a), public comment requirement
29 Del. C. § 10004(e)(2), seven-day advance notice
29 Del. C. § 10004(e)(6), six-hour agenda amendment window
29 Del. C. § 10005(a), citizen suit for invalidation
29 Del. C. § 10006A, virtual meeting requirements (anchor location)
29 Del. C. § 10006A(c): virtual participation info in notice
Lechliter v. DNREC, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017), agenda notice standard
Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986), invalidation as serious sanction
Del. Op. Att'y Gen. 24-IB21, prior ACT FOIA noncompliance findings
Del. Op. Att'y Gen. 24-IB26, public comment must be on agenda
Del. Op. Att'y Gen. 25-IB05, companion petition on the same meeting

Source

Original opinion text

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. 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, 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. In certain circumstances, a sworn affidavit may be required to meet that burden. 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. 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.

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 and must be worded in "plain and comprehensible language." Delaware courts have opined on the means to determine the sufficiency of an agenda:

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.

"[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item." 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."

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. 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. 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.

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.'" This public comment period must appear as an item on the agenda. 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. 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." 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 in Section 10006A. 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. 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. 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 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. 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." 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
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: James E. Liguori, Attorney for the Association of Coastal Towns