DE 25-IB12 2025-02-27

If a Delaware committee's agenda lists 'public education campaign' as a topic, can it vote at the meeting to appoint a liaison without separately listing that vote on the agenda?

Short answer: Yes. The Dewey Beach Climate Change Committee's agenda discussion of the public education campaign was specific enough that appointing a coordination liaison was a foreseeable consequence. The Committee also did not violate FOIA by adjourning without calling for public comment when no member of the public was present.

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 AG opinions are persuasive authority but not binding precedent.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

The Dewey Beach Climate Change Committee, an advisory body of citizen volunteers, met January 18, 2025. Its agenda included items like "6 month, 1 year plan of what the Committee intends to accomplish regarding information to be distributed to the public" and a possible vote on a packet of materials for a public education campaign. During the discussion, the Committee reached a consensus to enlist the Town's Marketing Committee to help disseminate the materials and to appoint a liaison between the two committees.

David Moskowitz petitioned, alleging two violations: (1) the agenda did not specifically list a vote on appointing a liaison, and (2) the Committee adjourned without calling for public comment, even though the agenda included a public comment period.

The Deputy AG ruled the Committee did not violate FOIA on either issue:

Agenda specificity. Delaware courts apply a "general statement of major issues" test for agendas (29 Del. C. § 10002(a)). The agenda need not "provide for every alternative that may take place with respect to a specific subject under consideration." Citing the Court of Chancery's Lechliter v. Becker decision (which found that an agenda stating a lease amendment would be considered was sufficient notice that a vote might happen), the AG concluded the public-education-campaign agenda items were specific enough that appointing a coordination liaison was foreseeable. No violation.

Public comment with no public present. The Committee's agenda properly listed a public comment item. The FOIA coordinator's sworn affidavit confirmed that no member of the public attended in person or virtually. The opinion holds that a body is "not obligated to call for public comment when no member of the public is present." So no violation.

What this means for you

If you sit on a Delaware advisory committee or public body

You do not have to list every conceivable vote on the agenda. If you list "discuss X" with reasonable specificity, you can vote on what comes out of that discussion if it is a "natural consequence" of the topic. But practice tip: when in doubt, add a separate "discussion and possible vote on appointing a liaison" line. It costs nothing and prevents the petition.

If you're a citizen who could not attend a meeting and want to comment afterward

The Town has no obligation to revisit your comments after the fact. The public-comment opportunity is at the meeting itself, in person or via the offered virtual channel. If you cannot attend, your options are: (1) submit written comments in advance and ask they be entered in the record; (2) attend the next meeting under public comment; (3) email committee members directly. None of these triggers a formal FOIA process, but all are real channels.

If you're a Delaware committee FOIA coordinator

The opinion is helpful precedent for tightly run meetings. Two pointers worth noting: (1) keep an attendance log showing who attended in person and who joined the virtual feed; the Committee here was saved by the FOIA coordinator's affidavit confirming no public was present; (2) the agenda need not be "snare-tight," but more specificity is always safer than less.

If you challenge committee votes in similar cases

Look for whether the agenda topic was specific enough to put a member of the interested public on notice. The standard is a member with "intense interest" in the matter. If you can document that you are such a member and were genuinely surprised, the agenda may be defective. But "I should have been told this exact item would be voted on" is not enough; the courts and AG read agenda specificity flexibly.

Common questions

Q: Does an advisory committee count as a "public body" under FOIA?
A: Yes, if it was created by a public body to advise it. The Climate Change Committee here was an ad hoc advisory committee of the Town, comprised of citizen volunteers. That status puts it under the open-meetings rules.

Q: What if the public missed the meeting because of late notice?
A: That would be a separate violation about notice timing, not about whether public comment was offered at the meeting itself. Notice rules require seven days advance posting under 29 Del. C. § 10004(e)(2).

Q: Was the liaison appointment formally a "vote"?
A: Per the Town's response, the Committee reached "consensus" rather than holding a formal vote. The AG addressed both possibilities and found no violation either way.

Q: What's the difference between "general statement of major issues" and "every alternative"?
A: The agenda has to alert the interested public that a topic will come up. It does not have to predict every motion or sub-decision. So "Discuss public education campaign" covers the topic and reasonable subsidiary actions; it does not require listing every possible motion that might be made.

Q: Why does this opinion seem permissive when other DE FOIA opinions are strict?
A: Because the underlying violation here was thin. Other opinions (like 25-IB05 and 25-IB09 on the ACT meeting) involve concrete procedural failures: missing comment period entirely, improper notice timing. This opinion involves second-guessing a properly noticed meeting where a foreseeable consequence happened. The AG declined to invent a violation.

Citations

29 Del. C. § 10002(a), agenda content standard
29 Del. C. § 10004, open meeting framework
29 Del. C. § 10004(a), public comment requirement
29 Del. C. § 10005(c): burden on public body
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
Lechliter v. DNREC, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017), agenda standard
Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017), agenda need not list every alternative
Del. Op. Att'y Gen. 10-IB12, 24-IB26, agenda and public comment requirements

Source

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB12
February 27, 2025

VIA EMAIL
David Moskowitz
[email protected]

RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. Moskowitz:

We write in response to your correspondence alleging that the Town of Dewey Beach 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the Town's Climate Change Committee did not violate FOIA by voting on a liaison position related to its public education campaign at its January 18, 2025 meeting and by not calling for public comment prior to the meeting's adjournment when no member of the public was present.

BACKGROUND

The Climate Change Committee of the Town of Dewey Beach held a public meeting on January 18, 2025. This Petition alleges that the Committee violated FOIA during this meeting by voting on the appointment of a liaison without adequate notice in the agenda and by failing to call for public comment before adjourning the meeting, despite a public comment period appearing on the agenda.

On February 5, 2025, the Town, through its legal counsel, replied to the Petition ("Response"). The Town included the affidavit of its FOIA coordinator who attests that the factual representations in this Response are true and correct to the best of her knowledge. The FOIA coordinator also states under oath that she attended this meeting in person and managed the videocasts to ensure the public's ability to participate remotely. In the Response, the Town states that the Climate Change Committee is an ad hoc advisory committee comprised of citizen volunteers to "develop plans and recommendations to the Town Council for a responsible strategy and resilience to rising sea levels and protect Dewey Beach in the face of climate change." The Town alleges that the Committee considered the topic of a public education campaign at the meeting and reached a consensus to enlist the assistance of the Marketing Committee to disseminate educational materials and to appoint a liaison to coordinate efforts between the two committees. The Town argues that the Committee was not required to appoint such a position via a vote, but even it was required, FOIA does not prohibit this vote, as a general statement of the major issue, a public education campaign, appeared on the agenda. The enlisting of help from the Marketing Committee and choosing a liaison were natural consequences of that discussion. The Town contends that "[i]t is well within the scope of a duly noticed discussion of a public education campaign that partnering opportunities with existing town resources and measures to communicate between them would potentially be acted upon."

Regarding the Petition's second claim, the Town argues that the Committee's chair did not violate FOIA in adjourning the meeting without calling for public comment. The Town provides sworn statements from the FOIA coordinator who attended the meeting and provided technical support, affirming that no member of the public, including you, attended the meeting either in person or through virtual means. The Town maintains the public comment opportunity was appropriately noticed, and because the public was not present, no one was deprived of the opportunity to give public comment.

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. A meeting of a public body must be open to the public, except in limited circumstances, and 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.

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." "[T]he point of the agenda is to put the public on notice, not to answer every question about the agenda item." While the public body must provide enough information to alert the public that a subject will be undertaken, the agenda's description need not provide for "every alternative that may take place with respect to a specific subject under consideration."

In this case, the Committee's agenda provided for several items related to the public education program, including "6 month, 1 year plan of what the Committee intends to accomplish regarding information to be distributed to the public, including who should have oversight/approval" and "[d]iscuss and possibly vote to recommend to the Town Council a packet of materials to be disseminated to property owners via a public education campaign." A member of the public interested in this subject matter of the public education campaign would be able to review this agenda and determine this topic would be under consideration, and this agenda need not specifically state all the alternatives that may arise from considering this topic, including a potential vote on a liaison to work on this campaign. Accordingly, we do not find a violation of FOIA in this regard.

In addition, the Petition alleges that the Committee violated FOIA by adjourning the meeting without calling for public comment per the agenda. "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. The agenda in this case properly include a public comment period, and the Town provided statements, verified under oath by the FOIA coordinator monitoring the meeting, that no member of the public was present during the meeting either in person or virtually. We find no violation of FOIA occurred, as a public body is not obligated to call for public comment when no member of the public is present.

CONCLUSION

For the foregoing reasons, we conclude that the Town's Climate Change Committee did not violate FOIA at its January 18, 2025 meeting by voting on a liaison position for its public education campaign or by not calling for public comment when no member of the public was present at the meeting.

Very truly yours,

/s/ Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
State Solicitor

cc: Fred A. Townsend, III, Town Solicitor