Can a Delaware municipality wait two years to produce meeting minutes from a rezoning vote?

Plain-English summary

James Lisehora asked Rehoboth Beach for the minutes of a June 16, 2023 Mayor and Commissioners meeting and an updated zoning map showing two parcels rezoned at that meeting. When the City did not answer on time, he petitioned the AG. He filed a second petition because the meeting minutes were not posted on the City's website.

The City acknowledged its late response. It said no updated zoning map existed because the most recent map was dated 2010. Its FOIA coordinator swore that the 2023 meeting minutes had been prepared and would be presented for approval at an August 2025 meeting, then provided to Lisehora.

The AG found a violation for the minutes. FOIA requires a public body to maintain meeting minutes and make them available for public inspection and copying. About two years after this meeting, those minutes were still unavailable. The AG recommended that the Mayor and Commissioners approve them as planned and make them available to Lisehora.

The AG found no further violations. It treated the late-response claim concerning the zoning-map item as moot because the City had answered it. It also held that FOIA did not require the City to post the minutes online. The opinion states no general number of days for drafting or approving minutes.

What this means for you

If you request minutes from a Delaware public body

This opinion applies § 10004(f)'s requirement to maintain minutes and make them available for inspection and copying. The City's plan to approve its June 2023 minutes at an August 2025 meeting did not cure their unavailability when the AG decided. The opinion does not set a general deadline for all bodies.

If you serve as a municipal clerk or solicitor

FOIA did not require Rehoboth Beach to post these minutes on its website, but it did require the City to maintain them and make them available for public inspection and copying. The AG found the minutes unavailable roughly two years after the meeting and recommended approval and access.

If you requested an updated zoning map

The City said the most recent zoning map was dated 2010 and that it had no responsive updated map. The AG treated the complaint about the late response to that item as moot once the City answered. It did not order the City to create a new map.

Common questions

Must Delaware meeting minutes be posted online?

The AG said no. Section 10004(f) requires a public body to maintain minutes and make them available for public inspection and copying. The violation here was that the 2023 minutes were unavailable, not that they were missing from the website.

How quickly must minutes be approved under this opinion?

The opinion gives no general deadline. It found that minutes still unavailable for a meeting held approximately two years earlier violated § 10004(f). It recommended that this City's Mayor and Commissioners approve the minutes as planned and make them available.

Did the City's promise to provide approved minutes end the violation?

No. At the time of the AG's determination, the minutes remained unavailable for inspection and copying. The AG found a violation despite the City's stated plan to approve and provide them later.

Why was the zoning-map response issue moot?

The first petition complained that the City had not responded on time. After the City said there was no updated map responsive to that item, the AG treated the timeliness claim for that item as moot. It did not treat the unavailable minutes the same way.

Did the AG order approval of the minutes?

It recommended that the Mayor and Commissioners approve the June 16, 2023 minutes as planned and make them available to Lisehora. The opinion does not report whether that later happened.

Background and statutory framework

The June 2025 request sought two records: minutes of the 2023 meeting and an updated map for two rezoned parcels. The City eventually answered the map item but had not made the minutes available. Section 10004(f) requires public bodies to "maintain minutes of all meetings" and "make such minutes available for public inspection and copying as a public record." The AG applied those words to find a violation for the unavailable minutes. Its mootness finding concerned only the late response on the map item.

Citations and references

• 29 Del. C. § 10004(f) (meeting minutes)
• 29 Del. C. § 10005(c) (public body's burden)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (cited on mootness)

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).