Can a Delaware municipality wait two years to produce meeting minutes from a rezoning vote?
Plain-English summary
A Rehoboth Beach resident filed a FOIA request in June 2025 for meeting minutes from a June 16, 2023 city Mayor and Commissioners meeting where two parcels of land were rezoned by unanimous vote, plus an updated zoning map showing the rezoning. When the city didn't respond within FOIA's deadline, he petitioned. While the AG was working on it, he filed a second petition complaining that the minutes still weren't on the city's website.
The AG ruled the city violated FOIA in one specific way: it had failed to maintain the June 16, 2023 minutes and make them available for inspection for two years. Section 10004(f) requires public bodies to maintain minutes and make them available; that obligation isn't satisfied by simply not preparing minutes for that long. The city's solicitor reported that the minutes were finally drafted and would be presented for board approval at the August 2025 meeting and then provided to the requester.
The AG declined to find other violations. The original delayed response was made moot when the city eventually answered both items (no zoning map updates exist; the most recent map is from 2010). And the website-posting complaint failed because FOIA doesn't require minutes to be posted online, it only requires them to be "maintained" and "made available for public inspection and copying."
What this means for you
If you serve on a Delaware municipal council, board of commissioners, or any public body
The two-year-minutes problem is a structural failure. If your body votes to rezone parcels, approve budgets, or do anything material, the minutes need to exist within a reasonable time. The statute lets bodies that meet four or fewer times per year up to 20 working days for draft minutes; for monthly bodies, the practical norm is approval at the next regular meeting. Two years is well past any defensible window.
If you have unapproved minutes piling up, get them on a clear schedule. Approve them in batches if you have to. Don't let a rezoning, contract award, or significant policy decision sit without a minute trail.
If you're a Rehoboth Beach property owner or applicant
The rezoning of those two parcels in June 2023 was real and binding (the vote happened, even if the minutes lagged). If you need to confirm the rezoning for a title issue, financing, or development decision:
- Pull the meeting agenda and any video recording of the June 16, 2023 meeting (the AG's opinion notes both were on the city website)
- Reach out to the city's planning or zoning office for the current zoning designation of each parcel
- Once approved, the August 2025 minutes will document the action
Don't rely solely on the city's online zoning map. The opinion notes the most recent map is from 2010, so any rezoning since then needs to be confirmed by direct inquiry.
If you're a Delaware municipal clerk or city solicitor
Two takeaways. First, if your body has a backlog of unapproved minutes, the FOIA-petition risk is real. Get them caught up. Draft minutes you can pull from a recording in an afternoon are not a long-term backlog item. Second, you don't need to post minutes online to satisfy FOIA. "Maintain" plus "make available for inspection" is the bar. If your council prefers website-only access, that's fine, and if you only have an email/in-person process, that also satisfies the statute. Failure to post online is not a violation.
If you're a Delaware FOIA petitioner
A two-prong strategy worked here: petition for the original delay, then petition again when remediation lags. The AG mooted the timeliness claim once records came in, but found the underlying minutes-existence violation. If you petition early and a body remediates partially, file a follow-up rather than dropping the matter. The Library v. AFG mootness doctrine cited in this opinion will defeat lingering timeliness claims, but underlying record-existence claims survive.
Common questions
Q: Does Delaware FOIA require meeting minutes to be posted online?
A: No. 29 Del. C. § 10004(f) requires bodies to "maintain" minutes and "make such minutes available for public inspection and copying as a public record." Online posting is one way to do that, but in-person inspection or email-on-request also satisfies the statute.
Q: How quickly do meeting minutes have to be available?
A: For bodies that meet four or fewer times per year, draft minutes are required within 20 working days and final approved minutes within 5 working days of approval. For other bodies, the statute requires "maintenance" and availability: which the AG has read to mean prompt creation and approval at the next regular meeting.
Q: What if the body doesn't approve minutes for years?
A: That's a violation. Maintaining and making minutes available presupposes that minutes exist. A two-year gap, like Rehoboth Beach's here, breaches the statute regardless of any "we hadn't approved them yet" defense.
Q: What does "moot" mean in a FOIA case?
A: It means the issue no longer requires a remedy because the situation has been resolved. Here, the request for the zoning map was rendered moot when the city explained no responsive map exists. The AG cited The Library, Inc. v. AFG Enterprise (Del. Ch. 1998) and Flowers v. Office of the Governor for this principle.
Q: Can I recover attorney fees or damages from a Delaware FOIA violation?
A: Limited remedies. Under 29 Del. C. § 10005, the Court of Chancery can void actions taken in violation, and Superior Court can hear citizen suits. Attorney fees are available in some circumstances. The AG's petition process produces a non-binding determination but no damages.
Q: What if my city says they don't have a record I think exists?
A: They have to prove it. Under 29 Del. C. § 10005(c), the public body bears the burden of proof. If they say a record doesn't exist (like the updated zoning map here), they should be prepared to support that with sworn evidence per Judicial Watch v. University of Delaware.
Background and statutory framework
Rehoboth Beach is a small Delaware coastal municipality with active land-use politics. Rezoning votes draw scrutiny because they affect property values, density, and short-term-rental rights. The petitioner here was tracking a specific 2023 rezoning, and the city's two-year delay in producing minutes meant the formal record of how that rezoning happened was missing for an extended period.
The mootness analysis the AG applied draws from a line of Chancery and Superior Court cases. Once the public body produces the records or supplies a sworn statement that no responsive records exist, the AG generally declines to find a violation on timeliness grounds even if the original response was late. That's not free pass for delay: note that the AG still found the minutes-maintenance violation. But late production of an existing record will usually moot a timeliness claim if it happens before the AG decides.
Citations and references
Statutes:
- 29 Del. C. § 10004(f) (minutes maintenance)
- 29 Del. C. § 10005 (enforcement)
Cases and prior opinions:
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017), mootness in FOIA cases
- The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159 (Del. Ch. July 27, 1998), mootness doctrine
- Chem. Indus. Council v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), sworn-evidence requirement
- Del. Op. Att'y Gen. 18-IB30 (Jun. 7, 2018); 17-IB35 (July 31, 2017), mootness applied in prior AG opinions
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/08/07/25-ib41-8-07-25-foia-opinion-letter-to-james-lisehora-re-city-of-rehoboth-beach/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/08/Attorney-General-Opinion-No.-25-IB41.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-IB41
August 7, 2025
VIA EMAIL
James Lisehora
[email protected]
RE: FOIA Petitions Regarding the City of Rehoboth Beach
Dear Mr. Lisehora:
We write in response to your correspondence alleging that the City of Rehoboth Beach violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). Your first correspondence was accepted on July 11, 2025 ("First Petition"), and your second correspondence was accepted on July 17, 2025 ("Second Petition"). We treat this correspondence as a combined Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the City violated FOIA by failing to maintain the minutes for the June 16, 2023 meeting and make them available to you. We find no further violations with respect to the remaining claims.
BACKGROUND
On June 9, 2025, you submitted a FOIA request seeking the "[m]inutes from the June 16, 2023 Regular Meeting of the Mayor and Commissioners" and "an updated zoning map showing the current zoning of two parcels of land that were rezoned by unanimous vote of the Mayor and Commissioners during their Regular Meeting on June 16, 2023." [1] The First Petition followed, alleging that the City failed to respond to this request.
The City, through its counsel, submitted a response to this First Petition, stating that the delay was the result of an unintentional, administrative oversight. The City answered the two requests in its Response. For the first item, the City's FOIA coordinator attests that the minutes for the June 16, 2023 meeting have been prepared and will be presented at the upcoming August meeting for approval. The City states that the minutes will then be provided to you. For the second item in your request, the City's counsel stated that there are no responsive records, as the most recent zoning map is dated 2010.
You submitted the Second Petition alleging that while the agenda and video of the June 16, 2023 meeting were on the website, the minutes from the June 16, 2023 meeting were not posted on the City's website, as required. [2] The City, through its counsel, submitted a response, which included the affidavit reiterating that the minutes from the June 2023 meeting will be presented for approval by the Mayor and Commissioners at the August 2025 meeting and thereafter provided to you.
DISCUSSION
Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." [3] The public body has the burden of proof to justify its denial of access to records and to otherwise demonstrate its compliance with FOIA. [4] In certain circumstances, a sworn affidavit may be required to meet that burden. [5]
The First Petition alleges that the City did not respond to your FOIA request within the statutory timeframes. The City acknowledges its failure to timely respond. As you have now received the response to the second item seeking the updated zoning map, the timeliness claim with respect to the second item is moot. [6]
Meeting minutes, however, are a different matter. The failure to provide you with the minutes from the June 16, 2023 meeting for inspection and copying violates the open meeting provisions of the FOIA law. While the City is not required, as alleged in the Second Petition, to post the meeting minutes online, the City must "maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record." [7] As the minutes are not available for this meeting held approximately two years ago, the City is in violation of Section 10004(f). We recommend that the City's Mayor and Commissioners approve the June 16, 2023 meeting minutes, as planned, and make them available to you.
CONCLUSION
For the reasons set forth above, we conclude that the City violated FOIA by failing to maintain the minutes for the June 16, 2023 meeting and make them available to you. We find no further violations with respect to the remaining claims.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Lisa Borin Ogden, City Solicitor
[1] First Petition.
[2] The Second Petition included multiple additional claims, which this Office previously dismissed in its July 18, 2025 correspondence.
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc., 267 A.3d at 1008-1012.
[6] See, e.g., Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295, at 13 (Del. Ch. May 19, 1994); Del. Op. Att'y Gen. 18-IB30, 2018 WL 3118433, at 2 (Jun. 7, 2018); Del. Op. Att'y Gen. 17-IB35, 2017 WL 3426275, n. 3 (July 31, 2017) (citing The Library, Inc. v. AFG Enter., Inc., 1998 WL 474159, at *2 (Del. Ch. July 27, 1998)).
[7] 29 Del. C. § 10004(f).