DE 25-IB49 2025-10-06

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?

Short answer: Verbal is enough. The AG determined that the Office of State Planning Coordination did not violate FOIA when it declined Amy Roe's written comments before the September 3, 2025 PLUS (Preliminary Land Use Service) meeting on NCC Data Centers. Section 10004(a) requires 'time for public comment' and lets a body limit the time allotted, which the AG read as pointing to verbal comment; nothing in FOIA requires accepting written comments. For the virtual portion, Section 10006A(c)(6) was satisfied because OSPC let the public monitor and give verbal comment over Microsoft Teams.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

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:

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.
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 opinion does not decide whether OSPC should, as a matter of policy, accept written comments; it addresses only the FOIA legal question and finds no violation. (OSPC also argued the petition was moot because Roe gave verbal comment at the meeting, but the AG resolved the petition on the merits rather than on mootness.)

What this means for you

If you want to give public comment at a Delaware open meeting

This opinion holds that FOIA guarantees time for public comment, and the AG read § 10004(a) as pointing to verbal comment given during the meeting. FOIA does not require a public body to accept written comments. So to make a comment that counts under FOIA, plan to speak during the public comment period, whether in person or, for a virtual meeting, through the electronic platform the body provides. The opinion does not say a body may not accept written comments as its own policy; it holds only that FOIA does not require it.

If you run a public body's meetings

The opinion supports declining written comments without violating FOIA, as long as the meeting includes time for public comment. For a virtual or hybrid meeting, § 10006A(c)(6) requires that the public be able, through an electronic means of communication, to monitor the meeting and provide public comment where comment is offered. OSPC satisfied that by holding the meeting on Microsoft Teams with videoconferencing and a phone line for verbal comment.

Background and statutory framework

29 Del. C. § 10004(a) requires every open meeting, including a virtual meeting, to "include time for public comment," and it allows reasonable restrictions on the length of the public comment period and the "amount of time allotted for each public comment." The AG read that language, with its references to "time" and to limiting the time per comment, as contemplating verbal comment rather than requiring written submissions.

29 Del. C. § 10006A governs virtual meetings. Section 10006A(c)(6) requires that the public be able, "through an electronic means of communication," to monitor the meeting and to provide public comment where the body is required to or chooses to accept it. The AG found OSPC met that requirement: the PLUS Coordinator's affidavit attested that the meeting was held in hybrid format on Microsoft Teams and that verbal public comment was accepted through that platform's videoconferencing and phone line.

Under 29 Del. C. § 10005, the AG treats a citizen's correspondence alleging a FOIA violation as a petition for determination, with the public body bearing the burden of proving compliance. The PLUS process itself is OSPC's coordinated state-agency review of land-use proposals; the opinion did not analyze the PLUS rules beyond the FOIA question.

Common questions

Did OSPC violate FOIA by refusing written comments?

No. The AG concluded that FOIA does not require a public body to accept written comments. Section 10004(a) guarantees time for public comment, which the AG read as verbal comment during the meeting, and OSPC provided that.

Why did the AG read the statute to mean verbal comment?

Because § 10004(a) speaks of "time for public comment" and of limiting "the amount of time allotted for each public comment." The AG found that phrasing suggests comments are intended to be verbal, and it makes no mention of written comments.

How were the virtual-meeting requirements satisfied?

The PLUS Coordinator attested that the meeting ran in hybrid format on Microsoft Teams, letting the public monitor it and give verbal comment through the videoconferencing and phone line. The AG found that met § 10006A(c)(6)'s requirement of public comment through an electronic means of communication.

Citations

Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10004(a) (time for public comment); § 10005 (petition and determination); § 10006A (virtual meetings); § 10006A(c)(6) (electronic monitoring and public comment).

Source

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