Does a school board committee violate Delaware FOIA when it discusses an unrelated proposed policy that wasn't on the meeting agenda?
Plain-English summary
The Christina School District Board of Education's Policy Review Committee held a public meeting on July 1, 2025. The agenda listed four specific board policies the Committee planned to discuss, including Policy 01.18 on "Responsibilities of Members of the Board." After working through those four policies, the Committee then took up a fifth, separate proposal: a new policy that would require board members to serve on the board for at least a year before becoming eligible to serve as president or vice president. They discussed the new proposal and noted they would seek legal advice on it.
A petitioner challenged this. The District argued the new presidency-qualifications proposal was covered by the agenda's existing reference to "Responsibilities of Members of the Board," because qualifications relate to roles. The Delaware AG didn't buy it.
The AG drew a clean line: "responsibilities" of members and "qualifications" to hold a particular role are separate subjects. An agenda alerts the public to what will be discussed, and a member of the public who tracked board responsibilities wouldn't anticipate that a new presidency-eligibility rule was about to be debated. The Committee violated FOIA by discussing this off-agenda proposal. The fact that no vote was taken is irrelevant because Delaware's definition of "meeting" in 29 Del. C. § 10002(j) covers any gathering for "discussing or taking action on public business."
The AG declined to invalidate anything (only the Court of Chancery can void a public body's action) but recommended that the Committee re-discuss the proposal at a future, properly noticed meeting and stick to the agenda going forward.
What this means for you
If you serve on a Delaware school board, committee, or any public body
Treat your agenda as a contract with the public, not a flexible suggestion. If a topic is genuinely connected to an agenda item, the safest practice is to use a more general agenda heading ("Discussion of Board Member Roles, Responsibilities, and Qualifications") or to defer the new topic to the next meeting after re-noticing.
When in doubt, defer. Delaware courts and the AG don't punish bodies for too-cautious agenda-setting, but they do find FOIA violations for discussion that wanders into unannounced subjects. The opinion explicitly cites Levy v. Cape Henlopen for the proposition that the no-vote argument doesn't save you.
If a committee member raises a brand-new proposal mid-meeting, the chair's job is to acknowledge it and table it for the next agenda. Don't workshop it on the spot.
If you're a parent or community member tracking board policy
Watch the agenda, not just the meeting. If you see "Responsibilities of Members of the Board" listed, that doesn't include eligibility rules for who can be president. If a committee starts discussing a topic that wasn't on the agenda you saw, you have grounds to file a FOIA petition.
A FOIA petition (a free letter to the AG's office) is a real tool. The AG produces opinions like this one for school district issues regularly. The petition doesn't require an attorney.
If you're a Delaware school board attorney
The "general statement of major issues" requirement in 29 Del. C. § 10002(a) is read with some flex (per Lechliter v. Becker, an agenda item announcing a lease amendment was held sufficient to cover a vote on it). But the flex is around foreseeable alternatives within a noticed subject, not around adding new subjects entirely. When advising your board, separate "what's on the agenda is binding" from "every alternative within an item is implicitly covered."
If you're a journalist
Off-agenda discussion at a school board committee is a reliable FOIA petition trigger and produces a quick, citable AG opinion. If the committee meeting is recorded (as Christina's was, on YouTube), you have free evidence to attach to your petition.
Common questions
Q: Does an agenda have to specify every topic that might come up?
A: No. The agenda has to provide a "general statement of the major issues" the body expects to discuss, in plain language sufficient to alert the public with intense interest. Foreseeable alternatives within a noticed subject are usually fine. New, unrelated proposals are not.
Q: What if the body doesn't take a vote on the off-agenda topic?
A: Doesn't matter. Delaware's FOIA definition of "meeting" under 29 Del. C. § 10002(j) covers gatherings for "discussing or taking action on public business." Discussion alone is enough to require notice.
Q: How specific does the agenda item have to be?
A: Specific enough that a "member of the public with an intense interest" in the matter would know it was coming up. Lechliter v. DNREC says you need to be able to read the notice and determine that an issue important to you will be under consideration.
Q: What if the committee chair believes a new topic is "naturally connected" to a noticed item?
A: Courts review this objectively, not from the chair's perspective. A reader looking at "Responsibilities of Members" wouldn't reasonably anticipate "Eligibility for Board Presidency": those are different subjects.
Q: Can the AG invalidate the committee's discussion?
A: No. Under 29 Del. C. § 10005(a), only the Court of Chancery can void an action. The AG can find a violation and recommend remediation. Here, the AG recommended re-discussing the proposal at a properly noticed meeting.
Q: Does this rule apply to subcommittees and ad hoc working groups, or only the full board?
A: It applies to any "public body" within Delaware FOIA's scope, which includes board committees. The Levy v. Cape Henlopen case the AG cites confirmed that committee meetings need FOIA notice even if the committee can't take final action itself.
Background and statutory framework
Delaware's FOIA sets up two parallel obligations: (1) timely notice of meetings, and (2) an agenda that gives the public a meaningful preview of what will be discussed. The Delaware Court of Chancery built out the "intense interest" standard for agenda specificity over a series of cases beginning with Ianni (1986) and continuing through Lechliter v. Becker and Lechliter v. DNREC. Together they say: the agenda doesn't have to be a transcript, but it has to be specific enough that a person interested in a topic could read the notice and know the topic was on deck.
The Christina School District has been a frequent subject of FOIA petitions, particularly around board governance and policy-review processes. The petitioner here was tracking a debate over whether to require seasoning before a member could become board president: a policy with obvious implications for board majorities and leadership control. The video recording of the meeting (linked in the petition) made the off-agenda discussion easy to document. That kind of recorded meeting record is increasingly the basis for FOIA petitions.
Citations and references
Statutes:
- 29 Del. C. § 10002(a) (agenda content)
- 29 Del. C. § 10002(j) (definition of meeting)
- 29 Del. C. § 10004 (open meetings)
- 29 Del. C. § 10005 (enforcement)
Cases:
- Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017), agenda need not list every alternative
- Lechliter v. DNREC, 2017 WL 2687690 (Del. Ch. Jun. 22, 2017), "intense interest" standard for agenda specificity
- Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147 (Sept. 28, 1990), committee meetings require FOIA notice
- Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986), original "intense interest" formulation
- Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994), agenda must use plain comprehensible language
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/08/01/25-ib39-8-01-25-foia-opinion-letter-to-kane-dennison-gomez-re-christina-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/08/Attorney-General-Opinion-No.-25-IB39.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 25-IB39
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB39
August 1, 2025
VIA EMAIL
Kane Dennison-Gomez
RE: FOIA Petition Regarding the Christina School District
Dear Kane Dennison-Gomez:
We write regarding your correspondence alleging that the Christina School District violated the Delaware 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 find that the Policy Review Committee of the Christina School District Board of Education violated FOIA at its July 1, 2025 meeting by discussing the below-referenced proposed policy that was not included on the meeting agenda.
BACKGROUND
On July 1, 2025, the Policy Review Committee of the Board of Education held a meeting. The agenda including the following policies for discussion: (1) Policy 01.10 – School Attorneys; (2) Policy 01.12 – Board-Staff Communications; (3) Policy 01.18 – Responsibilities of Members of the Board; and (4) Policy 01.22 – Superintendent Work. The Committee considered each of these policies separately, placing each on the shared screen of the virtual meeting during the discussions. After the policies listed on the agenda were discussed, other policies, including a new policy proposing qualifications for serving as board president, were shared and discussed. This Petition followed.
In the Petition, you claim that the meeting included discussions about a policy not listed on the agenda, which would require a Board member to serve for more than a year on the Board before becoming eligible to serve as president or vice president. You also allege that the Committee expressed the intent to "rush and seek legal advice" on this new proposed policy. [1] You allege that the agenda did not contain sufficient detail to inform the public that this proposed board member qualification policy would be discussed. The Petition included a link to the video recording of the meeting. [2]
The District, through its legal counsel, replied to your Petition ("Response"). The District acknowledges that a policy related to qualifications for the school board presidency was discussed at the Committee's July 1, 2025 meeting, and the Committee conferred regarding the need for legal counsel to review the proposal prior to taking action. However, the District argues that it provided proper notice for this policy regarding board presidency qualifications through another policy on the agenda entitled "Responsibilities of Members of the Board." The District asserts that the policy regarding "Responsibilities of Members of the Board" provided sufficient notice to any member of the public with an intense interest in policies related to the specific roles of Board members, including the qualifications for holding those roles. The District notes that it did not take a vote regarding this board presidency qualification proposal, and the discussion took place in a properly noticed public meeting.
DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. [3] In certain circumstances, a sworn affidavit may be required to meet that burden. [4] A meeting of a public body must be open to the public, except in limited circumstances, [5] and an agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss [6] and must be worded in "plain and comprehensible language." [7] Delaware courts have opined on the means to determine the sufficiency of an agenda:
In order that the purpose of the agenda requirement be served, it should, at least, "alert members of the public with an intense interest in" the matter that the subject will be taken up by the [public body]. In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration. . . . FOIA provides an informational right to allow public involvement in government. [8]
FOIA is intended to ensure that public business is done in the open, so that citizens may hold public officials accountable. While the public body must provide enough information to alert the public that a subject will be undertaken, the agenda's description need not provide for "every alternative that may take place with respect to a specific subject under consideration." [9]
In this case, this Committee's purpose is to review policies, and the July 1, 2025 meeting agenda listed four specific policies for consideration. When each policy was considered for review, the proposed policy was placed on a shared screen and discussed by Committee members. [10] The District claims that "Policy 01.18 – Responsibilities of Members of the Board" offered sufficient notice to the public that qualifications for the presidency would be discussed at this meeting. However, this proposal does not relate to the responsibilities and roles of a member; it involves a separate topic, the qualifications to serve in the president position. The agenda and format of this meeting also make it clear that this policy was a separate subject matter unrelated to Policy 01.18. After reviewing the four policies on the agenda, the Committee discussed and shared access to other policies not listed on the agenda, including this policy about the qualifications for the board presidency, which a Committee member introduced as a new proposal. [11] As such, we find that the Committee violated FOIA by discussing this proposed policy without listing it on the agenda. [12]
Having found that the Committee violated FOIA, we consider whether any remediation is appropriate to recommend. Section 10005(a) states that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate a public body's action, or to impose other relief, is reserved for the courts. [13] The Delaware Court of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." [14] In this case, we recommend that the Committee discuss the proposed policy at a future meeting held in compliance with FOIA's open meeting requirements. We also recommend that at future meetings, the Committee discuss policies that are properly noticed on the Committee's meeting agenda.
CONCLUSION
For the foregoing reasons, we determine that the Committee violated FOIA at its July 1, 2025 meeting by discussing this proposed policy that was not included on the meeting agenda.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Alpa V. Bhatia, Attorney for the Christina School District
[1] Petition.
[2] Id., "CSD Board of Education Policy Committee Meeting – July 1, 2025," https://www.youtube.com/watch?v=_1HRwzpFwS8 (last visited July 25, 2025).
[3] 29 Del. C. § 10005(c).
[4] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[5] 29 Del. C. § 10004.
[6] 29 Del. C. § 10002(a).
[7] Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at *8 (Del. Ch. May 19, 1994).
[8] Lechliter v. Del. Dep't of Natural Res. & Envtl. Control, 2017 WL 2687690, at 2 (Del. Ch. Jun. 22, 2017) (quoting Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at 4 (Del. Ch. Aug. 29, 1986)).
[9] Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017) (finding that an agenda stating a lease amendment would be presented and considered was sufficient notice that a vote on the lease amendment might occur).
[10] Petition, "CSD Board of Education Policy Committee Meeting – July 1, 2025," https://www.youtube.com/watch?v=_1HRwzpFwS8 (last visited July 25, 2025).
[11] Id.
[12] The fact that a vote was not taken is not determinative of whether notice was required for the item. See 29 Del. C. § 10002(j) ("'Meeting' means the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business."); Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *4 (Sept. 28, 1990) (finding that committee meetings were required to be noticed in accordance with FOIA, even though they were "for the purpose of discussing public business") (emphasis in original).
[13] 29 Del. C. § 10005.
[14] Ianni, 1986 WL 9610, at *7.