If a Delaware town holds a private meeting with a developer, refuses to let residents observe, and then doesn't even respond to the FOIA petition, what happens?
Plain-English summary
At a May 12, 2025 Town of Blades Council meeting, the Mayor announced she would meet with a property developer the following week. Joseph Donahue asked at that meeting for two people to attend the developer meeting to silently observe. A week later, at a May 19 workshop, Donahue was told he could not attend the meeting (set for two days later) because it was a private meeting between Town officials and the developer that did not involve a quorum of the Council. Donahue tried to attend anyway. The Town's police chief turned him and another resident away at the door.
Donahue and Keith Redmond filed a FOIA petition. They argued (a) the meeting was open-meetings violation; (b) it was improperly noticed under the Town charter; (c) the two-day late notice that they could not attend was unethical and violated other Delaware law (Title 22 and 77 Del. Laws § 299).
The AG sent the Town's lawyer a copy of the petition and asked for a response. The Town did not reply.
Under § 10005(c), the public body bears the burden of demonstrating compliance with FOIA. With no response from the Town and no evidence that the meeting complied, the AG had to find a violation. The AG also clarified scope: claims about ethics, charter violations, and other Delaware law fall outside FOIA jurisdiction. Only the open-meetings claim was within reach.
Recommended remediation: discuss the meeting topics (to the extent permissible under § 10004) and ratify any votes at a future open public meeting in compliance with FOIA.
What this means for you
If you live in a small Delaware town and watch your local government
Two practical takeaways from this opinion:
- Even informal-sounding meetings can be public-body meetings under FOIA. When the Mayor and the police chief are part of an organized meeting on town business with a third party, the question of whether it is a "public body meeting" is fact-specific. The Town's own framing ("private, no quorum") is not the end of the analysis; the AG could not assess that defense because the Town did not file one.
- Petitioning works even when you cannot get into the room. Donahue documented the bar from the door, filed the petition, and the Town's silence cost it the case. A small-town resident with no legal training can use the petition process effectively.
If you sit on a small-town council or board
The "no quorum, so no public body meeting" defense exists in Delaware FOIA, but it is your job to prove it with a sworn affidavit naming who attended and confirming no quorum sat. Skipping the response to a petition is the worst possible move; you forfeit a defense you might have actually had on the merits.
If you advise a Delaware municipality
Two practice points: (1) Petitions from this Office are not optional. Even a brief, two-paragraph response that cites the no-quorum defense and attaches the Mayor's affidavit would have changed the outcome here. (2) When charter or ethics issues are mixed with FOIA claims, address the FOIA claims; the AG explicitly notes the non-FOIA claims are outside scope. Do not argue the wrong issues and let the FOIA issue get a default loss.
If you're a developer in talks with a Delaware municipality
Closed-door meetings with multiple Town officials are vulnerable to FOIA challenge. The safer pattern: have the principal Town staff (City/Town Manager) take a single bilateral meeting with you, then bring the matter to the public body in open session. Concentrating exposure in one staff person (who is treated as a "body of one" under DE FOIA) protects against the open-meetings claim. See 25-IB15 for the framework.
Common questions
Q: Why did the AG find a violation without analyzing the merits?
A: Section 10005(c) puts the burden of proof on the public body. When the Town did not respond, there was nothing in the record to satisfy that burden. A default win for the petitioners is the result.
Q: Could the Town now file a late response and reopen the case?
A: The opinion is final. The Town's path forward is the recommended remediation: hold an open public meeting that re-discusses the topics (to the extent appropriate) and ratifies any actions taken. That cures the legal effect; it does not erase the violation finding.
Q: What about the police chief's role in barring residents?
A: The opinion does not address it directly. If the meeting itself was an open-meetings-required gathering, then the police chief's enforcement of the bar would be the mechanism of the violation. The opinion does not need to reach that question because the Town conceded by silence.
Q: Were the ethics and charter claims valid?
A: The AG specifically does not decide. Those claims would need to go to the Public Integrity Commission (for ethics) or potentially state court (for charter compliance). The AG's FOIA jurisdiction is narrow.
Q: What does "ratify any votes" mean here?
A: If the May 21 meeting included any binding decisions or votes, those decisions are vulnerable to challenge. Bringing the topic back to a properly noticed public meeting and re-voting cures the defect. If no actual votes occurred, ratification still serves the function of putting the Town's deliberation back on the public record.
Q: How small is Blades?
A: Town of Blades is a small Sussex County municipality (population around 1,500). Small towns often have less developed FOIA-compliance infrastructure, which is part of how this kind of default loss happens.
Citations
- 29 Del. C. § 10004, open meetings framework
- 29 Del. C. § 10005, AG petition authority and remedies
- 29 Del. C. § 10005(c), burden on public body
- 29 Del. C. § 10005(e): citizen petition process
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Del. Op. Att'y Gen. 20-IB28 (Nov. 9, 2020), non-FOIA municipal-law issues outside AG FOIA jurisdiction
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/06/17/25-ib32-6-17-25-foia-opinion-letter-to-joseph-m-donahue-jr-and-keith-redmond-re-town-of-blades/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/06/Attorney-General-Opinion-No.-25-IB32.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-IB32
June 17, 2025
VIA EMAIL
Joseph M. Donahue, Jr.
[email protected]
Keith Redmond
[email protected]
RE:
FOIA Petition Regarding the Town of Blades
Dear Mr. Donahue and Mr. Redmond:
We write in response to your correspondence, alleging that the Town of Blades violated
Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this
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. As discussed more fully herein, we
determine that the Town violated FOIA by failing to demonstrate that the below-referenced Town
meeting was held in compliance with FOIA.
BACKGROUND
This Petition alleges that the Town of Blades violated FOIA by holding a private meeting
with a property developer. Specifically, the Petition asserts that the Mayor stated at the May 12,
2025 Council meeting that she planned to have a meeting with the developer the following week;
Mr. Donahue asked at that time for two people to attend the meeting to silently observe. At a May
19, 2025 workshop meeting, Mr. Donahue was told he could not attend the meeting to be held two
days later, as it was a private meeting between Town officials and the developer, which did not
involve a quorum. The Petition states that Mr. Donahue still attempted to attend the meeting, but
the Town's police chief denied Mr. Donahue and another Town resident entry to the building. The
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Petition contends that this denial of access was a violation of FOIA and alleges that the meeting
was improperly noticed in violation of the Town charter. Further, the Petition asserts that the
Town's two-day notice that Mr. Donahue could not attend this meeting was unethical and a
violation of Title 22 and 77 Delaware Laws, Section 299. This Office provided a copy of this
Petition to the Town's attorney and requested a response, but did not receive a reply.
DISCUSSION
In any action brought under Section 10005, 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 As a preliminary matter, this Office's authority under the FOIA statute is
limited to determining alleged violations of the FOIA statute.3 The non-FOIA claims, including
the allegations regarding ethics, the Town's charter, and other alleged statutory violations, cannot
be considered in this Opinion.
The Petition's primary claim is that the Town violated FOIA by holding a private meeting
between Town officials and a property developer. As the Town did not respond to this Petition
and provided no argument whatsoever, we must find that the Town violated FOIA, as it did not
meet its burden of demonstrating that this meeting was held in compliance with FOIA's provisions.
Accordingly, we recommend that the Town discuss the meeting's topics, to the extent permissible
under 29 Del. C. § 10004, and ratify any votes taken, at a future public meeting held in compliance
with FOIA.
CONCLUSION
We conclude that the Town violated FOIA by failing to demonstrate that the abovereferenced meeting was held in compliance with FOIA.
1
29 Del. C. § 10005(c).
2
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
29 Del. C. § 10005(e) ("Any citizen may petition the Attorney General to determine
whether a violation of this chapter has occurred or is about to occur. "); see e.g., Del. Op. Att'y
Gen. 20-IB28, 2020 WL 7663557, at *2 (Nov. 9, 2020) ("These matters of municipal law,
concerning the authority of the Council President or Mayor, are outside the scope of the FOIA
statute, and thus, we make no determination regarding these issues.").
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Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
Michael R. Smith, Attorney for the Town of Blades
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