Does Delaware's open-meetings agenda rule apply to a Joint Legislative Committee?

Plain-English summary

The Joint Legislative Oversight and Sunset Committee, often called JLOSC, is a committee of the Delaware General Assembly. It conducts focused reviews of state programs to recommend whether to continue, change, or sunset them. JLOSC met on February 13, 2025. Its agenda listed one substantive item: "Staff Presentation on Focused Review: Lead Poisoning Prevention Program (DHSS, DPH)." The agenda included a public comment period for that item.

A coalition of advocates, including Lead-Free Delaware, the Delaware PTA, the Delaware School Nurses Association, the Delaware Black Commission, and the NAACP Education Committee filed a FOIA petition. They argued that the meeting actually spanned much wider territory than the agenda suggested: the Delaware State Lead-Based Paint Program, the Childhood Lead Poisoning Prevention Advisory Committee, lead service-line replacements, and the lead-safety of drinking water in public schools. Different agencies administered different pieces. Some agencies were present at the meeting and could respond to concerns; others, whose programs were not on the agenda, were not. The petitioners argued this disadvantaged some agencies and limited the public-comment portion to just the noticed item.

The Director of the Division of Legislative Services responded for the Committee. The substantive defense: 29 Del. C. § 10004(e)(1) expressly exempts the General Assembly from FOIA's meeting notice and agenda requirements. JLOSC is part of the General Assembly. Therefore the agenda rules do not apply. The Committee added that even if they did, the agenda was sufficient (member of the public with intense interest would have known the lead program would be discussed), and JLOSC took no action at the meeting; it deferred for sixty days to allow further written public comment and additional research.

The Deputy AG ruled for the Committee on the threshold ground. The General Assembly's exemption from § 10004(e) extends to its committees, including JLOSC. So the February 13 agenda did not violate FOIA, and the AG did not need to reach the alternative arguments.

What this means for you

If you advocate on lead poisoning prevention or any other public-health issue under JLOSC review

The opinion holds that JLOSC, as part of the General Assembly, is not bound by FOIA's agenda-specificity rules, so the agenda's contents do not constrain what the Committee may take up. It notes that the Committee took no action at the February 13 meeting and "deferred all action on the Committee's review for sixty days to allow for further written public comment and additional research."

If you're testifying at a JLOSC meeting

The petitioners alleged the public-comment portion was "overly limited to only the noticed item" while discussion ranged across other lead programs. The opinion did not reach that argument; it resolved the case on the threshold exemption, holding the General Assembly is not subject to § 10004(e)'s notice and agenda requirements.

If you serve on a Delaware legislative committee

The opinion holds that the General Assembly, and its committees, are exempt from FOIA's meeting-notice and agenda requirements under § 10004(e)(1). It notes the Committee's argument that this is "consistent with case precedent that has found the General Assembly has the sole authority to make rules to determine and govern its own proceedings."

If you're a citizen frustrated by a meeting that ranged beyond the agenda

The opinion holds that the General Assembly is exempt from FOIA's meeting-notice rules, so JLOSC's February 13 agenda did not violate FOIA even though, per the petition, much of the meeting covered programs not listed on it. Because it resolved the case on that exemption, the AG did not decide whether the agenda would otherwise have been sufficient.

Common questions

Q: Why does the General Assembly exempt itself from FOIA's meeting rules?
A: The opinion explains the exemption rests on the principle that "the General Assembly has the sole authority to make rules to determine and govern its own proceedings," and that § 10004(e)(1) expressly excludes the General Assembly from FOIA's meeting-notice requirements.

Q: Is JLOSC's exemption automatic or does it depend on the committee's structure?
A: The exemption applies to any committee that is part of the General Assembly. JLOSC was created by the General Assembly to conduct sunset reviews, so it qualifies.

Q: What about other state legislative committees? Are they all exempt?
A: Yes, the statute applies to "the General Assembly," which courts and AG opinions have treated as covering its committees. Independent commissions created by the General Assembly may have a different status if they are not internal legislative bodies.

Q: Did the AG say JLOSC's agenda was actually sufficient?
A: No. The AG decided the case on the threshold exemption and explicitly did not reach the alternative argument. So the opinion does not give you a precedent on what an "intense interest" member of the public would have understood.

Q: Does this opinion say anything about lead poisoning policy?
A: No. The opinion is purely procedural. The substantive lead-poisoning-prevention concerns the petitioners raised about Delaware's programs are not addressed. Those concerns remain matters for legislative and agency action.

Citations

• 29 Del. C. § 10002(a), definition of agenda
• 29 Del. C. § 10004, open meetings framework
• 29 Del. C. § 10004(e), meeting notice and agenda requirements
• 29 Del. C. § 10004(e)(1), General Assembly exemption from notice requirements
• 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/2025/03/28/25-ib20-3-28-25-foia-opinion-letter-to-sarah-bucic-dr-amy-roe-et-al-re-joint-legislative-oversight-and-sunset-committee-delaware-general-assembly/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-No.-25-IB20.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-IB20
March 28, 2025

VIA EMAIL
Sarah Bucic, MSN, RN
Lead-Free Delaware
[email protected]
Dr. Amy Roe
Lead-Free Delaware
[email protected]

Jakim Mohammed
The Delaware Black Commission
President Kelly Coffee
Delaware PTA
DSNA President Denise Bradley Buffin,
RN, Med, MSN, NCSN, School Nurse

Dr. Terri Hodges
Chair, Education Committee, NAACP

RE:

FOIA Petition Regarding the Joint Legislative Oversight and Sunset
Committee, Delaware General Assembly

Dear Petitioners:
We write in response to your correspondence alleging that the Joint Legislative Oversight
and Sunset Committee of the Delaware General Assembly 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 the Committee
has not violated FOIA as alleged.

BACKGROUND
The Joint Legislative Oversight and Sunset Committee held a meeting on February 13,
2025. The meeting agenda included the item "Staff Presentation on Focused Review: Lead

Poisoning Prevention Program (DHSS, DPH)," followed by a public comment period for this item.
This Petition followed.
In the Petition, you allege that "[a]lthough the Lead Poisoning Prevention Program was
discussed, the majority of the meeting time was spent reviewing other initiatives and programs
that are not part of the Lead Poisoning Prevention Program and were not listed on the agenda." 1
These topics included the "Delaware State Lead-Based Paint Program, the Childhood Lead
Poisoning Prevention Advisory Committee, lead service-line replacements, and the lead-safety of
drinking water in public schools." 2 You state that not all these programs are administered by the
same State agency. You allege that "[c]ertain agencies, therefore, were given an advantage by
being present to respond to concerns and criticisms, while other agencies were at a disadvantage
by not having their program review listed on the agenda." 3 You also believe that these deficiencies
in the agenda caused the public comment portion of the meeting to be overly limited to only the
noticed item.
On March 12, 2025, the Director of the Division of Legislative Services replied to the
Petition on the Committee's behalf ("Response"). The Committee argues that because the
Committee is part of the General Assembly, it is not bound by the agenda requirements in the
FOIA statute, pointing to the express exemption in 29 Del. C. § 10004(e)(1) that excludes the
General Assembly from FOIA's meeting notice requirements. The Committee asserts that this
exception is consistent with case precedent that has found the General Assembly has the sole
authority to make rules to determine and govern its own proceedings. Even if this meeting notice
exception was found not to apply to the Committee, the Committee believes that its agenda in this
case provided sufficient notice by alerting members of the public with an intense interest in the
matter that this subject would be addressed at the meeting. Finally, the Committee also emphasizes
that it took no action at this meeting; rather, the Committee deferred all action on the Committee's
review for sixty days to allow for further written public comment and additional research into the
questions presented at the meeting.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 4 In certain
circumstances, a sworn affidavit may be required to meet that burden. 5 FOIA mandates that public
bodies meet specific requirements when holding public meetings, including those contained in
1

Petition.

2

Id.

3

Id.

4

29 Del. C. § 10005(c).

5

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
2

Section 10004(e). This section requires a public body to give advance notice of a public meeting
and to post this notice with an agenda, which is defined to include "the major issues expected to
be discussed" and a "statement of intent to hold an executive session and the specific ground or
grounds therefor." 6 However, the General Assembly is specifically exempted from the meeting
notice requirements in Section 10004(e), including the requirement to post a meeting agenda. 7 As
the Committee is part of the General Assembly, we find that the Committee is also exempt from
the requirement to post an agenda, and its February 13, 2025 agenda therefore did not violate
FOIA.

CONCLUSION
We conclude that the Committee's February 13, 2025 meeting agenda did not violate
FOIA, as the General Assembly is exempted from FOIA's meeting notice requirements.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Mark J. Cutrona, Esq., Director, Division of Legislative Services

6

29 Del. C. §§ 10002(a), 10004.

7

29 Del. C. § 10004(e)(1) ("This subsection concerning notice of meetings does not apply
to any emergency meeting which is necessary for the immediate preservation of the public peace,
health, or safety, or to the General Assembly.").
3