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 AG opinions are persuasive authority but not binding precedent.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.

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 committee can substitute or amend a bill on very short notice, including substantively rewriting it the morning of a hearing, without violating FOIA. Practical adjustments:

Watch the legislator and committee chair feeds, not just LIS. Substitutes often telegraphed via committee chair statements or sponsor releases earlier than the formal LIS file.
Read the substitute as soon as it drops. Three hours is enough to skim a substitute if you are watching for it. Build a script that watches the LIS bill page and alerts on a substitute.
Prepare written testimony that is bill-version aware. When testifying, lead with which version you are addressing and flag any concerns specific to the substitute.

If you're a Delaware legislator or committee chair

You have legal flexibility to substitute bills late, but the political accountability is yours. A best-practice norm (not a legal one) is to brief stakeholders and post substitutes as far in advance as possible. The exemption does not require you to publish 6 hours out, but it also does not stop you from doing so as a courtesy.

If you're an open-government advocate

This opinion, like 25-IB20, confirms the General Assembly's procedural shield. Two paths if you want to change it: (1) constitutional challenge (very steep, given separation-of-powers grounding); (2) legislative amendment to § 10004(e)(1). Of the two, only (2) is realistic, and it would require the General Assembly to vote against its own procedural prerogative.

If you're a journalist covering committee action

The legal answer (no FOIA violation) is the only one the AG can give. The political and editorial questions ("was this a fair process? did the public have meaningful notice?") are yours. You can credibly report on a late bill substitution as a transparency issue without conflating that with a FOIA violation.

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. SB 21 in 2025 was a high-profile corporate law bill addressing controlling shareholder transactions in Delaware corporations. It generated significant public interest, which is why the substitute drew this petition.

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: Unlikely. The General Assembly's authority to govern its own proceedings is strongly protected (Delaware Constitution Article II, § 9). Even without the FOIA exemption, courts would be reluctant to impose external procedural rules on the legislature.

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: Is there any practical recourse?
A: Politically, yes. Press the committee chair, contact members, and use public comment in the limited windows that exist. Legally, no, not under FOIA.

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
Del. Op. Att'y Gen. 25-IB20, JLOSC same exemption analysis

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