Did Delaware's Joint Legislative Oversight and Sunset Committee have to post a FOIA meeting agenda?

Plain-English summary

The Joint Legislative Oversight and Sunset Committee is part of the Delaware General Assembly. It met on February 13, 2025. Its agenda listed a "Staff Presentation on Focused Review: Lead Poisoning Prevention Program (DHSS, DPH)," followed by 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. Because this Committee is part of the General Assembly, the AG found it exempt from § 10004(e)'s agenda requirement. The AG did not need to reach the alternative arguments about this agenda's content.

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 this Committee, as part of the General Assembly, is exempt from FOIA's agenda-posting requirement. The Committee said it 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." The AG did not decide the petitioners' other concerns about the meeting.

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 this Committee is exempt from FOIA's meeting-agenda requirement because it is part of the General Assembly. Section 10004(e)(1) exempts the General Assembly from that subsection's meeting-notice rules. The opinion does not decide the status of other legislative bodies.

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

The opinion holds that this Committee is exempt from FOIA's meeting-agenda rule because it is part of the General Assembly. The petitioners alleged the meeting covered programs not listed on the agenda, but the AG did not decide whether the agenda would otherwise have been sufficient.

Common questions

Q: Why did the agenda requirement not apply here?
A: Section 10004(e)(1) exempts the General Assembly from that subsection's meeting-notice requirements. The AG found this Committee was part of the General Assembly and therefore exempt from the agenda-posting requirement. The Committee also raised an argument about legislative control of its proceedings, but the AG did not rely on it.

Q: What fact tied this Committee to the exemption?
A: The AG stated that the Joint Legislative Oversight and Sunset Committee is part of the General Assembly. On that basis, it found the Committee exempt from the agenda requirement.

Q: Did the AG decide whether every legislative committee or an independent commission is exempt? A: No. The opinion applies the General Assembly exemption to the Joint Legislative Oversight and Sunset Committee because it is part of the General Assembly. It gives no test for another body's status.

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