Does Delaware FOIA require state agencies to accept written public comments at meetings, or can they require comments to be made verbally during the public comment period?

Plain-English summary

The Delaware Office of State Planning Coordination ("OSPC") runs a Preliminary Land Use Service (PLUS) process, where state agencies coordinate input on local land-use proposals before they go to local zoning bodies. On September 3, 2025, OSPC held a PLUS meeting in hybrid format (in-person plus Microsoft Teams) including an agenda item for "NCC Data Centers."

Amy Roe submitted written comments to OSPC before the meeting. OSPC declined to accept them, saying that written comments are not collected or posted in the PLUS process and that Roe could speak during the public comment period.

Roe petitioned the AG, asking whether the refusal violated FOIA, particularly the virtual meeting requirements in 29 Del. C. § 10006A(c)(6), which require that the public can attend and provide public comment "through an electronic means of communication."

The AG sided with OSPC. Two findings:

1. FOIA does not require written comments to be accepted. Section 10004(a) requires "time for public comment" during open meetings and allows reasonable restrictions on length. The reference to "time" and to limiting "the amount of time allotted for each public comment" implies verbal comments. There is no statutory requirement to accept written submissions.

2. Section 10006A(c)(6) was satisfied through Microsoft Teams. The PLUS Coordinator's affidavit confirmed that the meeting was conducted in hybrid format with Microsoft Teams videoconferencing, allowing remote attendees to monitor and provide verbal comment. That is "an electronic means of communication" satisfying the statute.

The AG also noted that Roe did attend and give verbal comment at the meeting, which makes the issue largely academic.

The opinion does not address whether there are policy reasons OSPC should accept written comments (many do as a matter of course); it addresses only the FOIA legal question.

What this means for you

If you want to participate in a Delaware state agency meeting

Plan to comment verbally during the public comment period. Whether in person or through the agency's electronic platform, your comment is most likely to be heard if you attend the meeting and speak during the allotted time.

If you cannot attend, ask whether the agency accepts written comments as a matter of practice (many do, even though FOIA does not require it). Send your written comments to the agency staff in advance and ask for confirmation that they will be considered. If the agency refuses, your only FOIA-protected option is verbal comment at the meeting.

If you are filing a PLUS comment on a project that affects you

The PLUS process is OSPC's coordinated review of land-use proposals among state agencies. Public comment is part of the process, but the agency's policy is verbal-only at the PLUS meeting itself. Plan accordingly:
1. Attend the PLUS meeting (in person or virtually).
2. Prepare your comments in writing for your own use, then deliver them verbally during the public comment period.
3. After the PLUS meeting, the project moves to the local zoning body (county council, city planning commission), where written comments are typically accepted. That is your written-comment opportunity.

If you are an OSPC or state agency staffer running a public meeting

You can lawfully decline written comments if your meeting policy is verbal-only. Best practices though:
1. State the policy clearly in advance (on the agenda, in the notice, on the website).
2. Allow generous public comment time so verbal commenters have opportunity to fully express views.
3. Consider whether accepting written comments would improve the process (it usually does), even though not required.

If you are a state agency attorney advising on FOIA compliance

The opinion is a useful reference: FOIA does not mandate written-comment acceptance. If your client agency wants to limit to verbal comments only, that is permissible. Document the policy and apply consistently.

For virtual meetings under § 10006A, ensure the electronic platform allows remote attendees to (a) monitor the meeting and (b) provide public comment. Phone-line dial-in plus videoconferencing platforms like Microsoft Teams and Zoom easily satisfy this.

If you are tracking the NCC Data Centers proposal

The PLUS meeting was an early-stage state-agency coordination step. The substantive land-use decision happens at the local level (New Castle County Council or relevant zoning body). Public comment opportunities will continue at:
- Planning board hearings
- County council meetings
- Public hearings on specific applications
- Environmental review processes (if applicable)

Each of those forums has its own comment rules. Some accept written comment, some require verbal comment, some accept both. Check each agency's procedures.

If you are a citizen frustrated by limited comment formats

The AG opinion confirms that FOIA's floor is verbal comment. To get more, advocate for policy changes:
1. Ask the agency to adopt a written-comment policy.
2. Ask the General Assembly to amend FOIA to require written comments.
3. Use other channels (letters to legislators, formal regulatory comment in rulemaking, court filings if applicable) to put your views on record.

Background and statutory framework

29 Del. C. § 10004 sets the open-meeting requirements. Section 10004(a) requires every open meeting to "include time for public comment" during the meeting. The provision allows reasonable restrictions on the length of the public comment period and the time allotted for each comment.

The use of the word "time" suggests verbal comments. The statute's restrictions ("limit the length," "amount of time allotted for each public comment") presuppose a real-time speaking format. Written submissions are not within the natural reading of the section.

29 Del. C. § 10006A authorizes virtual public meetings, with conditions. Section 10006A(c)(6) requires that for virtual meetings, the public must be able, through an electronic means of communication, to:
1. Monitor the meeting (audio/video access).
2. Provide public comment, if the public body is required to or chooses to accept comment.

OSPC's hybrid Microsoft Teams meeting satisfied both prongs.

Section 10005(c) imposes the burden of proof on the public body. Judicial Watch v. Univ. of Del. requires sworn affidavit support in some cases. The PLUS Coordinator's affidavit established the meeting format.

The PLUS process is governed by Delaware planning statutes and OSPC procedures (not analyzed in this FOIA opinion). It is a coordinated state-agency review of major land-use proposals, providing input to the local zoning authority before final action.

Common questions

Why is the line drawn at "time" rather than "comment"?

The statute's text refers to "time for public comment" and to limiting "amount of time allotted." Both phrasings imply real-time, verbal participation. If the General Assembly had intended written comments to be required, it likely would have said "comment" without the time-bound qualifier. Statutory interpretation defaults to plain meaning.

Could the legislature change this?

Yes. Some states require written-comment acceptance for major proposals. The Delaware General Assembly could amend § 10004(a) to add a written-comment requirement. That would be a policy change, not a constitutional one. The current rule is statutory.

Does this mean public comment is meaningless?

Not at all. Verbal public comment is an important participation channel and is required to happen during the meeting itself, with members of the public body present and obligated to allow it. The opinion only addresses written submissions in addition to verbal comment.

What about agencies that do accept written comments?

Many do, voluntarily. The City of Wilmington, New Castle County Council, several school boards, and various state agencies accept written comments either as a substitute for or in addition to verbal comment. That is a policy choice, not a FOIA requirement. If you have written comments, ask whether the specific agency accepts them.

Are there meeting types where written comments must be accepted?

For administrative rulemaking under the Delaware Administrative Procedures Act (29 Del. C. ch. 101), written public comment must be accepted. That is a separate statute with separate rules. APA rulemaking is different from FOIA-governed open meetings.

For some land-use proceedings (zoning hearings, conditional use applications), written submissions must be accepted under the local procedural rules. Those are governed by county or municipal ordinances, not by FOIA.

What is a PLUS meeting?

The Preliminary Land Use Service is a state-agency coordination process administered by OSPC. When a major land-use proposal is filed (large subdivision, major commercial development, etc.), OSPC convenes representatives from multiple state agencies (DelDOT, DNREC, etc.) to review the proposal early in the process. The PLUS meeting is where that coordination happens, with input from the developer and the public.

PLUS recommendations are advisory; final land-use decisions are made by the local zoning authority. PLUS is one input among many in the local decision.

What about NCC Data Centers?

That is the agenda item that triggered Roe's petition. The opinion does not address the substantive merits of any data center proposal. NCC presumably refers to New Castle County. Data center development has been a contested topic in Delaware as in other states, raising land-use, energy demand, and water-use concerns.

Can I file a § 10005 petition over a public comment process?

You can, and Roe did. The AG analyzed the issue and found no violation. Filing a petition costs nothing but time, so if you have a real concern about meeting practices, the petition route is available. Just understand the legal framework: FOIA's floor is fairly thin on comment format requirements.

What if the agency refuses to let me attend at all?

That is a different and stronger FOIA claim. § 10004 requires open meetings, which means the public must be permitted to attend. Refusal to admit a citizen would be a more serious violation than a refusal to accept written comments.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10004 (open meetings); § 10004(a) (public comment time); § 10005(c) (burden of proof); § 10006A (virtual meetings); § 10006A(c)(6) (electronic public comment).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/10/06/25-ib49-10-06-25-foia-opinion-letter-to-amy-roe-re-delaware-office-of-state-planning-coordination/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/10/Attorney-General-Opinion-No.-25-IB49.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB49
October 6, 2025

VIA EMAIL
Amy Roe
[email protected]

RE: FOIA Petition Regarding the Delaware Office of State Planning Coordination

Dear Ms. Roe:

We write in response to your correspondence alleging that the Delaware Office of State Planning Coordination ("OSPC") 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the OSPC did not violate FOIA by denying your submission of written comments in connection with the September 3, 2025 PLUS meeting.

BACKGROUND

The OSPC scheduled a Preliminary Land Use Service ("PLUS") meeting for September 3, 2025, conducted both in person and virtually. Prior to the meeting, you submitted written comments regarding the agenda item for "NCC Data Centers," but the OSPC replied that written comments are not collected or posted in the PLUS process and advised you will have the opportunity to speak during the public comment period of the meeting. This Petition followed, in which you inquire whether this refusal to accept your written comments constitutes a violation of FOIA. You question the applicability of the virtual meeting requirement in Section 10006A(c)(6) allowing the public to attend and provide public comment through an electronic means of communication.

On September 18, 2025, the OSPC, through its legal counsel, replied to the Petition and enclosed the affidavit of the PLUS Coordinator and Planner ("Response"). The OSPC argues that this Petition is moot, because you participated in the September 3, 2025 meeting and verbally gave public comment during the public comment period. In addition, the OSPC contends that FOIA does not require public bodies to accept written public comment during the public comment periods for meetings. The OSPC asserts that it satisfied Section 10006A(c)(6), because the PLUS Coordinator and Planner, who monitored this meeting, attests that the meeting was held in a hybrid format, in person and virtually on the Microsoft Teams platform, and the OSPC accepted verbal public comments through that same means, the videoconferencing and phone line available on Microsoft Teams.

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." The public body carries the burden of proving compliance with the FOIA statute. In certain circumstances, a sworn affidavit may be required to meet that burden.

FOIA mandates that the meetings of public bodies, with limited exceptions, be open to the public and when certain requirements are satisfied, permits public bodies to hold a meeting virtually. A virtual meeting is a meeting of a public body that one or more members attend through the use of an electronic means of communication. Among other requirements, Section 10006A mandates that the public be permitted "through an electronic means of communication," to "monitor the meeting" and "provide public comment, if the public body is required to accept, or provides an opportunity for, public comment." Section 10004(a) requires that every open meeting, including virtual meetings, include "time for public comment" during the meeting and allows reasonable restrictions to be placed on the length of the public comment period and the "amount of time allotted for each public comment."

We do not believe that these provisions support the inference that written comments must be accepted at every public meeting. Section 10004(a) makes no mention of written comments; rather, it suggests comments are intended to be verbal, noting public bodies may limit the allotted time for each comment. Section 10006A(c)(6) requires a public body, through an electronic means of communication, to give the public the opportunity to attend and submit public comments in a virtual meeting, which the OSPC did here. Thus, we do not find a FOIA violation for the OSPC's denial of your written comments in this instance, as we do not believe that public bodies, in order to comply with Section 10004(a)'s requirement for a public comment period, are required by FOIA to accept written comments in connection with the public comment period.

CONCLUSION

For the foregoing reasons, we conclude that the OSPC did not violate FOIA by denying your submission of written comments in connection with the September 3, 2025 PLUS meeting.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Veda D. Wooley, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General