If a Delaware licensing board posts its meeting agenda only thirty minutes before the meeting starts, has it violated FOIA?

Plain-English summary

Delaware's Board of Electrical Examiners scheduled a meeting for February 5, 2025. Earle Dempsey checked the State's public meeting calendar early that morning and noticed the agenda was missing. He emailed the Board and its counsel. A Board employee fixed the link, but the agenda only went live thirty minutes before the meeting began. The meeting then went forward as scheduled.

Dempsey filed a FOIA petition. The Board, through counsel, conceded the petition was meritorious. It explained the underlying mistake: an agenda existed and had been circulated to Board members, but staff had failed to link the agenda from the State's public meeting calendar. The Board's counsel could not investigate Dempsey's morning email before the meeting started. The Division Director ordered retraining of staff acting as board liaisons and proposed a remediation plan: repost the February agenda for public review before the March meeting, then ratify (re-approve) the February actions at the March meeting under proper FOIA notice and with public comment.

The Chief Deputy AG found a violation. FOIA requires meeting notice at least seven days in advance, including the agenda if it has been determined. If the agenda is unavailable at that posting, it must be added at least six hours before the meeting with a brief reason for the delay. The Board posted this agenda thirty minutes before the meeting. The AG recommended that it implement its plan to repost the agenda and ratify the February items at a future meeting compliant with FOIA.

What this means for you

If you serve on a Delaware state licensing or regulatory board

The opinion applies two timing rules. Under § 10004(e)(2), meeting notice must be posted at least seven days in advance and include the agenda if determined. Under § 10004(e)(6), an agenda unavailable at initial posting "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." The Board posted this agenda thirty minutes before the meeting and conceded the petition was meritorious.

If you're a contractor or licensee monitoring board actions that affect your license

The opinion holds that this agenda, posted thirty minutes before the meeting, was untimely under FOIA. The petitioner emailed the Board that morning and then petitioned the AG. The AG recommended the Board carry out its proposed plan to repost the agenda and consider the February actions for ratification at a future compliant meeting.

If you administer a state board's public meeting calendar

The Board's stated error was that it created the agenda and circulated it to members and counsel but "neglected to create the link between the State of Delaware public meeting calendar and the meeting agenda." The opinion notes the Division Director ordered retraining of employees acting as board liaisons. The AG treated the failure as a timing violation regardless of the unintentional cause.

If you've challenged a board action that was decided at a meeting with a defective agenda

The remedy the opinion recommends is ratification of the February actions at a future meeting that is "fully compliant with FOIA," with the agenda reposted for public review beforehand and public comment allowed. The opinion does not describe the February actions as void or suspended; it found a violation and endorsed the Board's proposed repost-and-ratify plan.

Common questions

Q: Did circulating the agenda to board members satisfy the public-posting rule? A: No. The Board said it had circulated the agenda internally but failed to link it from the public meeting calendar. The AG found a violation because the public agenda was posted only thirty minutes before the meeting.

Q: What did the AG say about the February 5 actions?
A: The AG recommended that the Board implement its proposal to repost the agenda and ratify the February items at a future FOIA-compliant meeting. The opinion did not decide the current legal status of those actions or what effect ratification would have.

Q: Did the fact that the agenda was prepared and circulated internally save the Board? A: No. The opinion notes the Board "created an agenda for this meeting that was circulated to Board members and counsel" but neglected to link it to the public meeting calendar. The violation was the failure to post it publicly on time, not the absence of an agenda.

Q: What did the AG order the Board to do?
A: It found the violation and recommended the Board carry out its own proposed plan: repost the February 5 agenda for public review before the March meeting, then consider the February actions for ratification at the March meeting under proper FOIA notice with public comment.

Citations

• 29 Del. C. § 10004, open meetings framework
• 29 Del. C. § 10004(e)(2), seven-day notice and agenda posting requirement
• 29 Del. C. § 10004(e)(6), late-agenda add-on must be posted at least six hours before the meeting with reason for delay
• 29 Del. C. § 10005(c): burden on public body
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/03/05/25-ib16-3-05-25-foia-opinion-letter-to-the-delaware-board-of-electrical-examiners-division-of-professional-regulation-department-of-state-re-earle-dempsey/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-25-IB16.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 25-IB16
March 05, 2025

VIA EMAIL
Earle Dempsey
[email protected]

RE:

FOIA Petition Regarding the Delaware Board of Electrical Examiners, Division of Professional Regulation, Department of State

Dear Mr. Dempsey:
We write in response to your correspondence alleging that the Delaware Board of Electrical Examiners of the Division of Professional Regulations, Department of State 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 Board violated FOIA by failing to timely post the agenda for its February 5, 2025 meeting.

BACKGROUND
The Board of Electrical Examiners scheduled a meeting for February 5, 2025. Early that morning, you emailed the Board and its counsel to point out that the agenda was still missing from the public notice for the meeting. Later that morning, a Board employee acknowledged the missing agenda and subsequently corrected the error by posting the agenda, but the posting occurred only thirty minutes prior to the meeting. This Petition followed, alleging that the delayed posting of the agenda was noncompliant with FOIA, and even though the Board was made aware of this error, the meeting continued as scheduled that day.

On February 13, 2025, the Board, through its legal counsel, replied, acknowledging that the Petition was meritorious ("Response"). The Board asserts that although it created an agenda for this meeting that was circulated to Board members and counsel, the Board neglected to create the link between the State of Delaware public meeting calendar and the meeting agenda. The Board's counsel explains he did not have the opportunity to review or investigate the allegations in your email prior to the start of the meeting. The Board emphasizes the error was unintentional and public access to Board meetings is of the utmost importance. To remediate the violation, the Division Director ordered retraining of employees acting as board liaisons to ensure compliance with FOIA obligations in the future. The Director also instructed that the full agenda of this February 5, 2025 meeting be reposted for public review prior to the Board's next meeting in March, which will allow the Board to consider, for ratification, its February meeting actions during the March Board meeting and allow public comment regarding any of those items.

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 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.4 "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." 5 As the Board acknowledges, the agenda for the February 5, 2025 meeting was not timely posted. We find a violation on this basis and recommend that the Board implement its proposed plan to timely repost this meeting agenda and ratify the items at a future meeting that is fully compliant with FOIA.

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

29 Del. C. § 10004(e)(2).

5

29 Del. C. § 10004(e)(6).
2

CONCLUSION
For the foregoing reasons, we conclude that the Board violated FOIA by failing to timely post the agenda for its February 5, 2025 meeting.

Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc:

A. Zachary Naylor, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

3