If three of seven members of a Delaware school board meet privately to discuss public business, does that violate FOIA's open meeting requirements?

Plain-English summary

Kane Dennison-Gomez filed a § 10005 petition alleging the Christina School District Board of Education had been holding closed strategy sessions in violation of FOIA. The evidence: an August 5, 2025 District staff email summarizing several meetings:

• A July 31, 2025 meeting that "appeared to include the majority of CSD legislators." (The Petition read this as suggesting a quorum of Board members.)
• A pattern of meetings between July 27 and August 1, 2025, including:
• July 27: Two named Board members met with the District CFO, attorney, and superintendent.
• July 29: Board President Moriak hosted a meeting on property reassessment, with two named Board members.

The Petition argued these added up to either an unnoticed quorum or a constructive quorum through serial communications.

The Board responded with documentation and made a threshold argument: even taking the Petition's facts as true, only three Board members were named as participants across the disputed meetings. The Christina School District Board has seven members. A quorum is four. Three is not enough to trigger FOIA's open-meeting rules.

The AG agreed. Two findings:

1. The July 31, 2025 meeting did not have a quorum. Three Board members is one short of the four-member quorum. The petitioner conflated "majority of CSD legislators" with "quorum of the Board." The two are not the same; legislators here means state representatives and senators from the district, not Board members. No FOIA violation.

2. The serial communications between July 27 and August 1 did not establish a constructive quorum. A "constructive quorum" is the doctrine that serial private discussions among public-body members can amount to an unnoticed meeting if they involve enough members to constitute a quorum AND involve active exchange of opinions on a decision. Here, the Petition only named three Board members across the alleged communications. Without a quorum even constructively, there is no constructive quorum. No FOIA violation.

The opinion also reinforces a procedural rule: petitioners alleging secret meetings carry the initial burden to make a prima facie case. Allegations must be specific enough to consider. Speculation that a meeting "appeared to include the majority" was not sufficient where the underlying evidence named only three Board members.

What this means for you

If you are a Delaware school board member or municipal council member

Two practical things. First, you can meet privately with senior staff, counsel, and other Board members below the quorum threshold without triggering FOIA's open-meetings rules. The line is "quorum gathered to discuss or take action on public business." Below that, FOIA does not regulate.

Second, that latitude is narrower than it looks. The constructive-quorum doctrine treats serial communications among Board members as an unnoticed meeting if (a) the communications eventually involve enough members to amount to a quorum, AND (b) the communications include active exchange of opinions and consensus-building (not just passive distribution of information). If you meet with two members on Monday, then two different members on Tuesday, and the four together would have made a quorum if they had been in one room, expect FOIA scrutiny.

The safest approach for substantive policy discussion is: do it in a noticed open meeting, or limit to genuinely informational briefings (one-way distribution rather than back-and-forth deliberation).

If you are a citizen or watchdog filing a FOIA complaint about a school board

You have the initial burden of making a prima facie case. The AG opinion will be dismissed if your allegations are too vague. To make a complaint stick:

1. Identify specific dates and times.
2. Name specific Board members alleged to have participated.
3. Show how the named members add up to a quorum (by board size).
4. Provide documentary support if possible (emails, sign-in sheets, witness accounts).
5. If alleging constructive quorum, describe the chain of communications and how they substituted for an open meeting.

Vague claims that "the Board has been meeting secretly" will not survive the prima facie threshold.

If you are a parent watching the Christina School District (or any DE school board)

This opinion is about procedure, not the underlying policy. The Board may well have been making sensitive decisions about property reassessment in those July-August meetings, but FOIA only requires the open-meeting process when a quorum gathers. Sub-quorum meetings with the CFO, the attorney, the superintendent, and a few Board members are how a lot of governance happens in practice.

If you are concerned about the substantive issue (here, property reassessment), the way to engage is through public comment at noticed Board meetings, public records requests for the underlying analyses, and electoral advocacy. FOIA's open-meeting protection sets a floor, not a comprehensive transparency mandate.

If you are a school district counsel advising on private meetings

Brief Board members regularly on the quorum threshold. Document who attended each closed meeting (counsel-only, executive session, or sub-quorum strategy session). When responding to a § 10005 petition alleging a private meeting, lead with the threshold: how many Board members were actually there. If the Petition fails the threshold test, the AG will dismiss without reaching the substance.

For constructive-quorum defense, document the timing and content of communications among Board members. The case law (GO4PLAY, Tryon, prior AG opinions) cuts in favor of the public body when communications were "passive receipt of information" rather than "active exchange of opinions."

If you are a journalist covering Delaware school governance

The 7-member board / 4-member quorum threshold is a common pattern across Delaware school districts. The constructive-quorum doctrine is a real legal hook for serial-meeting reporting, but you need documentation of an active back-and-forth that effectively substitutes for an open meeting. Bare allegations of "shadow meetings" without documentation rarely produce FOIA findings.

Background and statutory framework

29 Del. C. § 10004 imposes the open-meeting requirements on public bodies: advance notice, posted agendas, opportunity for public comment, meeting minutes.

29 Del. C. § 10002(j) defines "meeting" as "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." Two elements: (1) a quorum, and (2) discussing or taking action on public business.

The quorum threshold matters because below it, the gathering is not a "meeting" under FOIA. A school board with 7 members has a quorum of 4. A council with 5 members has a quorum of 3. The Charter or organizing statute typically defines the body's membership and quorum.

The constructive-quorum doctrine (recognized in AG opinions going back to 03-IB11 in 2003) extends the rule to serial communications. Key elements:
1. The communications must reach the quorum threshold across all participants.
2. The communications must constitute an "active exchange of information and opinions."
3. The communications must "supplant a public meeting," meaning they substituted for what should have been a noticed open meeting.

Cases like GO4PLAY (2022) and Tryon (1990) illustrate the contours: passive distribution of information is not a constructive quorum; consensus-building exchanges that effectively decide public business are.

The petitioner's prima facie burden was articulated in 17-IB20 (2017) and 05-IB10 (2005): the petitioner must show "substantive proof of a secret meeting rather than mere speculation." Allegations must be specific (16-IB18 (2016) rejected vague claims about Mayor passing notes during meetings).

Common questions

What is a quorum?

A quorum is the minimum number of members required to be present for a public body to conduct official business. It is typically a majority of the total membership, but the exact number is set by the body's charter or enabling statute. For the Christina School District Board (7 members), it is 4. For a 9-member council, it is 5. For a 3-member board, it is 2.

Do FOIA rules apply to a meeting of just two or three Board members?

Generally no, if the body has 7 members. The threshold test is whether a quorum is present. Below the quorum, the gathering is not a "meeting" under § 10002(j) and the open-meeting requirements do not apply.

But the constructive-quorum doctrine can still reach those gatherings if they are part of a serial communication pattern that involves enough additional members to amount to a quorum and effectively substitutes for an open meeting.

What is "constructive quorum"?

A legal doctrine that treats serial private communications among public-body members as the functional equivalent of a meeting. The classic pattern: Member A meets with Members B and C, then communicates separately with Member D, with the result that all four (a quorum) have participated in deliberations on a specific decision. AG and court opinions have found violations when the pattern shows active deliberation and consensus-building, not just informational briefings.

Can the Board meet privately with the superintendent, CFO, and attorney?

Yes, as long as the meeting does not reach a quorum of the Board. The presence of staff and counsel does not count toward the quorum; only Board members do. So three Board members + superintendent + CFO + attorney is not a meeting under FOIA, because only three Board members are present.

If a quorum of Board members attends, it is a meeting and FOIA applies regardless of who else is in the room.

What does "active exchange of opinions" mean for constructive quorum?

The case law distinguishes between passive receipt of information (one-way: staff sends data to Board members; or Board members read each other's emails without responding) and active exchange (multiple Board members responding, debating, building consensus on a decision). The latter looks like a meeting; the former does not. GO4PLAY (2022) found no constructive quorum where Board members "for the most part, affirmed what they had already stated in the public hearing" through emails that showed "no active exchange of ideas."

What does the petitioner need to file a successful complaint?

Specific allegations: dates, times, named participants, identifying which named participants are members of the public body (versus staff or external attendees), and how the named members add up to a quorum. Plus an explanation of the substance: what public business was discussed, and how it amounts to deliberation rather than informational briefing.

The AG opinion process is not investigatory. The petitioner produces the evidence, the public body responds, and the AG decides on the record. If the record is too thin, the petition fails on the prima facie test.

Does this opinion mean the Christina Board did nothing wrong?

It means the AG found no FOIA violation on the specific allegations in this petition. The opinion does not address whether the substantive decisions made about property reassessment were sound, whether the staff email was accurately summarized, or whether other allegations (not raised here) might support a different conclusion. A different petition with different evidence could come out differently.

What about board members forwarding emails to each other?

Forwarding factual updates to all members is generally not a constructive quorum. Active discussion through email replies among a quorum can be. The line is the back-and-forth deliberation pattern. Best practice for boards: distribute information through staff to all members at once, and reserve substantive discussion for noticed open meetings.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(j) (definition of meeting); § 10004 (open meetings); § 10005 (petition process).
• Cases: GO4PLAY, Inc. v. Kent Cnty. Bd. of Adjustment, 2022 WL 2718849 (Del. Super. July 12, 2022); Tryon v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990).
• Prior AG opinions: 17-IB20 (July 12, 2017); 16-IB18 (Sept. 29, 2016); 05-IB10 (Apr. 11, 2005); 17-IB09 (Apr. 25, 2017); 06-ID20 (Sept. 11, 2006); 06-IB16 (Aug. 7, 2006); 03-IB11 (May 19, 2003); 21-IB17 (July 23, 2021); 10-IB17 (Dec. 15, 2010).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/11/10/25-ib56-11-10-2025-foia-opinion-letter-to-kane-dennison-gomez-re-christina-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/11/Attorney-General-Opinion-No.-25-IB56.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB56
November 10, 2025

VIA EMAIL
Kane Dennison-Gomez
[email protected]

RE: FOIA Petition Regarding the Christina School District

Dear Kane Dennison-Gomez:

We write regarding your correspondence alleging that the Christina School District Board of Education 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 that the Board did not violate FOIA's open meeting requirements by meeting privately or through a constructive quorum on the occasions alleged in the Petition.

BACKGROUND

This Petition alleges that the Board violated FOIA by conducting multiple, closed strategy sessions where public business was discussed without following FOIA's open meeting requirements. The first claim is that a violation occurred on July 31, 2025, because a District staff member summarized that meeting in an August 5, 2025 email, stating the session included "what appeared to be the majority of CSD legislators." You state that four of the seven members of the Board constitute a quorum, and you believe that this statement signified a quorum of members must have attended. The referenced email names three Board members that attended this meeting.

The Petition's second claim is that a pattern of nonpublic, serial meetings occurred from July 27, 2025 to August 1, 2025. These meetings were summarized in the same August 5, 2025 District email. The Petition states that on July 27, 2025, Board Members Moriak and Manley met with the District's Chief Financial Officer, attorney, and superintendent. Additionally, the Petition alleges that on July 29, 2025, Board President Moriak hosted a meeting focused on the property reassessment; the cited email lists two Board members in attendance. The Petition argues that the coordinated strategy with the District staff bypassed public policy channels.

The Board, through its legal counsel, replied to your Petition ("Response"). The Board argues that the Petition fails to carry the burden of establishing a prima facie case that a private meeting of a quorum of members occurred to decide or deliberate towards a decision on a matter of public business. The Board affirms that four of the seven members constitutes a quorum for purposes of a Board meeting. For the first claim, as the Petition alleges that three Board members were present, the Board states that the allegations fail to show that a quorum at the July 31, 2025 meeting and notes that the presence of a majority of legislators is a separate matter and is not relevant to calculating a quorum of the Board. The Board notes that the Petition does not list the attendees at the July 29, 2025 meeting. For the second claim regarding a constructive quorum in the July 27 to August 1, 2025 meetings, the Board argues that this allegation also fails on its face, as the Petition cites to only three members as parties to these discussions. The Board asserts that "had the meetings between July 28-31 referenced by Petitioner occurred at the same time and place, it still would not have involved enough members of the public body that would have amounted to a quorum of the Board."

DISCUSSION

FOIA mandates that public bodies meet specific requirements when holding public meetings, including advance notice, posting notices and agendas, an opportunity for public comment, and maintaining meeting minutes. A meeting of a public body must be open to the public, except in limited circumstances. A meeting under FOIA is defined as "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." When a petitioner makes a claim of a secret meeting between public body members, the petitioner carries the initial burden of making a prima facie case that a meeting occurred. "A plaintiff must show substantive proof of a secret meeting rather than mere speculation in order to shift the burden of proof going forward." The allegations must be sufficiently specific to allow consideration. "Once a plaintiff has made a prima facie case that a quorum of a public body has met in private for the purpose of deciding on or deliberating toward a decision on any matter," the burden then shifts to the public body to prove that no violation of the open meeting requirements occurred. The Petition's first claim is that the July 31, 2025 meeting was privately held in violation of FOIA's open meeting requirements. However, the Petition alleges only three members met for the July 31, 2025 discussion. As four members are required for a quorum, we find that the prima facie case has not been met for this first claim and determine no violation occurred.

The Petition's second claim is that the Board met through constructive quorum in meetings from July 27, 2025 to August 1, 2025, which were held privately in violation of FOIA's open meeting requirements. "[S]erial telephone, email or other electronic communications among members of a public body may amount to a meeting of the public body." "It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum." For example, "a public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body 'to receive and comment on other members' opinions and thoughts, and reach consensus on action to take.'" It is further required that the communications involve "'an active exchange of information and opinions' as opposed to 'the mere passive receipt of information.'" The members' exchanges cannot supplant a public meeting.

In this case, we reviewed the provided emails and determine that the communications presented do not show a quorum of members were involved in the discussions occurring between July 27 and August 1, 2025, including the meetings on July 27, 2025 and July 29, 2025. The Petition indicates that these meetings involved Board Members Moriak, Lou, and Manley. As three members do not make a quorum, we find that the prima facie case has not been met and find no violation for the second claim.

CONCLUSION

For the foregoing reasons, we determine that the Board did not violate FOIA's open meeting requirements by meeting privately or through a constructive quorum on the occasions alleged in the Petition.

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