DE 25-IB24 2025-04-11

Does Delaware's FOIA six-hour agenda rule apply to the Senate Judiciary Committee when it swaps out a bill three hours before its hearing?

Short answer: No. The Senate Judiciary Committee did not violate FOIA when a substitute version of Senate Bill 21 replaced the original bill three hours before the March 12, 2025 hearing. The General Assembly, including its committees, is exempt from FOIA's meeting notice and agenda requirements under 29 Del. C. § 10004(e)(1).

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 AG opinions are persuasive authority but not binding precedent.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.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Senate Judiciary Committee scheduled a public meeting on March 12, 2025 to consider Senate Bill 21. About three hours before the meeting, a substitute version was filed to replace the original bill. Retired State Representative John Kowalko Jr. and John Flaherty of the Delaware Coalition for Open Government filed a FOIA petition. They argued that under FOIA's agenda rules (29 Del. C. § 10004(e)(6)), late agenda changes must be made at least six hours before the meeting, with the reason for the delay noted on the agenda. Three hours and no stated reason, they said, was a FOIA violation.

The Director of the Division of Legislative Services responded for the Committee. The defense was the same one the Joint Legislative Oversight and Sunset Committee used a few weeks earlier in 25-IB20: the General Assembly is exempt from § 10004(e) under § 10004(e)(1), and that exemption extends to its committees.

The Deputy AG agreed. As a committee of the General Assembly, the Senate Judiciary Committee is not bound by FOIA's six-hour rule (or any other meeting-notice requirement in § 10004(e)). No violation.

What this means for you

If you track Delaware legislation and rely on stable bill text

The opinion holds that the Senate Judiciary Committee, as part of the General Assembly, may substitute a bill close to a hearing (here about three hours before) without violating FOIA, because the General Assembly is exempt from § 10004(e)'s notice and agenda requirements. The six-hour rule the petitioners invoked does not bind the legislature.

If you're a Delaware legislator or committee chair

The opinion holds that a General Assembly committee is exempt from the agenda-posting requirements in § 10004(e), including the six-hour rule for late agenda changes. It notes the Committee's position that this exemption 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 an open-government advocate

The opinion reaches the same result as 25-IB20: the General Assembly and its committees are exempt from FOIA's meeting-notice requirements under § 10004(e)(1). It decides only the FOIA question and does not address whether that exemption could or should be changed.

If you're a journalist covering committee action

The opinion holds only that no FOIA violation occurred; the General Assembly's exemption means the timing of the bill substitution is not measured against § 10004(e). It does not address whether the substitution gave the public meaningful notice as a policy matter.

Common questions

Q: What's the six-hour rule normally?
A: Under § 10004(e)(6), if an agenda is not available when the initial public meeting notice goes up (which must be at least seven days before the meeting), the agenda can be added later, but no later than six hours before the meeting. The agenda must briefly state the reason for the delay. This rule applies to most public bodies, but not to the General Assembly.

Q: What is "Senate Bill 21" anyway?
A: The opinion does not specify the substantive content of SB 21; it addresses only the timing of the substitute version and the FOIA question. For the bill's text and history, see the General Assembly's bill page.

Q: How does this differ from 25-IB16, where a Board of Electrical Examiners posting 30 minutes early was held to violate FOIA?
A: That was a state licensing board, not the General Assembly. State boards are subject to § 10004(e); the General Assembly is exempt. The same physical timing failure (late agenda) is a violation for one and not the other.

Q: Could a court override this?
A: The opinion does not address court review. It rests on the statutory exemption in § 10004(e)(1) and the Committee's cited principle that the General Assembly "has the sole authority to make rules to determine and govern its own proceedings."

Q: Does this exemption mean committee members never have to comply with anything?
A: No. Other provisions of FOIA (records requests, for example) apply differently to legislative records. The legislative email exemption (10002(o)(16)) exempts legislator emails from production. But meeting structure under § 10004(e) is the specific subject of the exemption invoked here.

Q: Did the AG find any FOIA recourse here?
A: No. The opinion concludes the Committee did not violate FOIA because the General Assembly is exempt from the meeting-notice requirements; it identifies no FOIA remedy for the late bill substitution.

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

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-IB24
April 11, 2025

VIA EMAIL
Retired State Representative John Kowalko, Jr.
John Flaherty, Director
Delaware Coalition for Open Government
[email protected]

RE:

FOIA Petition Regarding the Senate Judiciary Committee, Delaware General
Assembly

Dear Petitioners:
We write in response to your correspondence alleging that the Senate Judiciary 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 Senate Judiciary Committee held a public meeting on March 12, 2025 to discuss
Senate Bill 21. Approximately three hours before the meeting, a revised version was filed to
replace Senate Bill 21. This Petition followed, alleging that this change to the agenda had to be
made at least six hours before the meeting and a reason for the delay must be noted in the agenda.
The Petition alleges that the Committee violated FOIA, because it did neither.

On March 24, 2025, the Director of the Division of Legislative Services replied to the
Petition on the Committee's behalf ("Response"), asserting that the "Committee maintains that
there can be no violation of FOIA in this case because FOIA does not apply to the Committee as
it relates to the sufficiency of an agenda." 1 The Committee states that as it 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.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 FOIA mandates that public
bodies meet specific requirements when holding public meetings, including those contained in
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." 4
However, the General Assembly is specifically exempted from the meeting notice
requirements in Section 10004(e), including the requirement to post a meeting agenda. 5 As the
Committee is part of the General Assembly, we find that the Committee is also exempt from the
requirement to post an agenda. The Committee's March 12, 2025 agenda therefore did not violate
FOIA.

Response.

29 Del. C. § 10005(c).

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

29 Del. C. §§ 10002(a), 10004.

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.").
2

CONCLUSION
We conclude that the Committee's March 12, 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