If a Delaware town's meeting agenda lists a 'Second Reading: Resolution' on a property tax rate, but the council actually does the first reading of an ordinance instead, is that a FOIA violation?
Plain-English summary
The Town of Blades's Council meeting on November 10, 2025 listed an agenda item: "Second Reading: Resolution 2025.10.27.0001 Real Estate Property Tax Rate." When the meeting started, the Mayor explained the Council had changed the resolution on the agenda to Ordinance No. 439, which was a first reading rather than a second reading. The next month, December 2, 2025, the Council met and listed "Second Reading of Ordinance 439: Real Estate Property Tax Rate Change Ordinance" on the agenda.
John Reiss filed a § 10005 petition arguing that the November 10 first reading of Ordinance 439 was not properly noticed because the agenda only listed a "second reading of a resolution," not a "first reading of an ordinance."
The AG found no violation. Two parts of the analysis:
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FOIA does not regulate the procedural form of municipal legislation. Whether the Town handles the property tax rate as a resolution or an ordinance, and whether it requires a first and second reading, is a municipal practice (under the Town Charter and municipal procedure rules), not a FOIA question. FOIA does not mandate a process for noticing first or second readings of proposed ordinances. The AG's authority under § 10005 is limited to FOIA violations, and procedural form is outside that scope.
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The agenda's substantive content was sufficient under § 10004. FOIA requires meeting agendas to include a "general statement of the major issues" expected to be discussed, in "plain and comprehensible language." The agenda item on the November 10 agenda described the substantive issue: the real estate property tax rate. That description was enough to "alert members of the public with an intense interest in" the matter that the property tax rate would be taken up. Whether the vehicle was a resolution or an ordinance is a procedural detail; the substantive subject was identified.
So even on the FOIA-cognizable claim (agenda specificity), the Town's agenda was sufficient.
What this means for you
If you are a Delaware municipal clerk drafting agendas
The standard from § 10004 is "general statement of major issues" in "plain and comprehensible language." You can change the procedural vehicle (resolution to ordinance, ordinance to motion, etc.) at the meeting itself, but you should describe the substantive subject accurately on the agenda. This opinion confirms that the substantive description is what matters; the procedural form is flexible.
If you are a town councilmember considering changing the form of legislation at a meeting
You can substitute one form for another (e.g., resolution to ordinance) at the meeting if substantive notice was given. But be careful: substituting a substantively different topic would violate the agenda requirement. The change here was form-only; the underlying topic (property tax rate) was the same.
If you are a citizen monitoring municipal meetings
Look at the substantive agenda description, not just the procedural label. If the agenda says "Real Estate Property Tax Rate" in any form, expect that subject to be discussed. The form (resolution, ordinance, motion) may shift at the meeting itself.
If you want to challenge an agenda's specificity
The challenge has to focus on substantive notice. "The agenda did not say first reading of an ordinance" is not a FOIA violation if the substantive issue (the tax rate) was clearly identified. To make a FOIA challenge stick, you need to show that a substantive subject was discussed without any agenda mention.
If you are a municipal attorney advising on agenda drafting
Two practical points. First, describe the subject substantively, not just the procedural posture. "Property Tax Rate Adjustment" rather than "Resolution X (Reading 2)" gives more flexibility at the meeting and clearer notice to the public. Second, the AG's authority under § 10005 is FOIA-only; procedural questions about ordinance versus resolution practice are governed by the Town Charter or the Delaware Code provisions specific to municipal procedure.
Background and statutory framework
29 Del. C. § 10001 declares the policy: FOIA exists to ensure citizens can observe public officials and monitor decisions on public policy.
29 Del. C. § 10004 sets the open-meetings requirements, including agenda content. The agenda must include a "general statement of the major issues" the public body expects to discuss, in "plain and comprehensible language." The standard is whether the agenda item would "alert members of the public with an intense interest in" the matter that the subject will be taken up.
The agenda is not a precise legislative tracking document. It is a notice tool. As long as the public is on notice that a particular subject (here, real estate property tax rates) is going to be addressed, the agenda has done its job. Whether the body addresses the subject through a resolution, an ordinance first reading, an ordinance second reading, or some combination is a procedural decision the agenda doesn't have to anticipate exactly.
29 Del. C. § 10005 is the petition process. Section 10005(c) puts the burden of proof on the public body. The Judicial Watch sworn-affidavit standard applies, but the AG's analysis here turned on the legal question of agenda sufficiency.
Common questions
What does FOIA require an agenda to say?
A "general statement of the major issues" expected to be discussed, in "plain and comprehensible language." Agenda items should be specific enough that someone with intense interest in the topic would recognize that the subject is going to be discussed.
Can the Council switch from a resolution to an ordinance at the meeting?
Yes. FOIA does not regulate the form of legislative action. The Town Charter or Delaware municipal-government statutes may require a first and second reading for an ordinance, but those rules are not FOIA-cognizable.
What if the agenda lists "Topic A" but the Council ends up discussing "Topic B"?
That could be a FOIA violation. The agenda must give substantive notice of the actual subjects discussed. Substituting a different procedural form is fine; substituting a different substantive subject is not.
What is the difference between a resolution and an ordinance?
In most Delaware municipalities, an ordinance is a more formal piece of local legislation, often requiring two readings, with codified status. A resolution is typically a less formal expression of legislative intent that can pass with a single vote. The procedural details vary by Town Charter. The AG opinion here did not parse the distinction because FOIA does not regulate it.
Why did the Mayor explain the change at the meeting itself?
That is a good practice from a transparency standpoint. The change in procedural vehicle was disclosed, and the substantive subject was the same as listed on the agenda. The opinion does not criticize the practice.
What kind of agenda item would actually violate FOIA?
A vague agenda that does not identify the substantive issue. Examples that have been found insufficient in prior opinions: "Old Business," "New Business," "Discussion," and similar generic placeholders that do not flag specific topics. The Town of Blades's "Real Estate Property Tax Rate" was specific enough.
Can I challenge the procedure-versus-form change in another forum?
Possibly. If you believe the Town did not follow its Charter or the Delaware Code provisions on municipal procedure, you could pursue that in a separate proceeding. The AG's FOIA opinion does not foreclose that. But under § 10005, the AG cannot opine on it.
Did the Council pass the property tax change?
The opinion implies the December 2, 2025 meeting handled the second reading of Ordinance 439. The merits of the tax rate change are not addressed by the AG opinion.
Citations
- Statutes: 29 Del. C. § 10001 (policy); § 10004 (open meetings; agenda requirement); § 10005 (petition process); § 10005(c) (burden of proof).
- Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/12/16/25-ib63-12-16-2025-foia-opinion-letter-to-john-reiss-re-town-of-blades/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB63.pdf
Original opinion text
KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB63
December 16, 2025
VIA EMAIL
John Reiss
[email protected]
RE: FOIA Petition Regarding the Town of Blades
Dear Mr. Reiss:
We write in response to your correspondence dated November 24, 2025, alleging that the Town of Blades violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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. As discussed more fully herein, we determine that the Town did not violate FOIA by failing to convey in its agenda that a first reading of Ordinance No. 439 regarding the real estate property tax rate was planned for the Town Council's November 10, 2025 meeting.
BACKGROUND
The Town Council held a meeting on November 10, 2025 with an agenda item named "Second Reading: Resolution 2025.10.27.0001 Real Estate Property Tax Rate." At the December 2, 2025 Council meeting, the agenda included the item: "Second Reading of Ordinance 439: Real Estate Property Tax Rate Change Ordinance Adopting The Change Of Real Estate Property Tax Rate." The Petition alleges that at the November meeting, the Mayor advised the Council had changed the resolution on the agenda to Ordinance No. 439. You allege that the Town violated FOIA, because the first reading of Ordinance No. 439 was not posted on the November meeting agenda.
DISCUSSION
FOIA is intended to ensure that public business is done in the open, "so that . . . citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." FOIA requires a meeting of a public body to be open to the public, except in limited circumstances. In any action brought under Section 10005, the public body has the burden of proof to demonstrate compliance with FOIA.
This Office's authority is limited to determining alleged violations of the FOIA statute. The Petition claims that the Town Council violated FOIA by failing to provide notice that a first reading of Ordinance No. 439 regarding the real estate property tax would occur at the meeting. However, FOIA does not mandate a process for noticing first or second readings of proposed ordinances; this municipal practice falls outside the scope of this Opinion.
Instead, FOIA requires sufficient notice be provided in any meeting agenda for the items intended to be discussed. An agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss and must be worded in "plain and comprehensible language." "In order that the purpose of the agenda requirement be served, [a meeting item] should, at least, 'alert members of the public with an intense interest in' the matter that the subject will be taken up by the [public body]." While the public body must provide [sufficient notice as articulated in the agenda].
[The AG concluded that the agenda's substantive description of "Real Estate Property Tax Rate" provided adequate notice that the property tax rate was on the agenda, even though the procedural vehicle changed from a resolution second reading to an ordinance first reading.]
CONCLUSION
We determine that the Town did not violate FOIA by failing to convey in its agenda that a first reading of Ordinance No. 439 regarding the real estate property tax rate was planned for the Town Council's November 10, 2025 meeting.