If three Delaware city councilmembers attend a meeting about a community Christmas event, does that automatically count as a 'public meeting' under FOIA?
Plain-English summary
A private committee, separate from City government, ran an annual "Spirit of Christmas" event in the City of New Castle. The committee announced cancellation. The Mayor and one councilmember decided to try to revive it and met on November 9, 2025. Michael Platt filed a FOIA petition alleging the meeting was a public meeting that should have been noticed and conducted under FOIA's open-meetings rules.
Platt's specific allegations:
- The organizing councilmember used a private email account to invite citizens, which Platt argued was improper for conducting public business.
- Three councilmembers attended (a quorum of the City Council), making the gathering a public meeting that needed FOIA-compliant notice and procedure.
- A decision was made at the meeting that the City Administrator would assume responsibility for running the event. Platt cited a news article calling it an "ad hoc group for Spirit of Christmas" and the Mayor's thanks at the meeting for the City Administrator's help.
- The Mayor's official Facebook page said the Mayor and councilmember were acting as private citizens (volunteers) rather than in their official roles. Platt argued this was inconsistent with how the meeting was actually conducted.
The City responded with sworn affidavits from the Mayor, the City Administrator, and the organizing councilmember. The factual picture: yes, three councilmembers physically attended, but one sat in the back and did not engage with the others or speak. The Mayor and organizing councilmember said no deliberations or decisions were made; the discussion was limited to the City's potential role in logistics for the event. Another entity has since assumed responsibility for coordinating the event, mooting any City involvement.
The AG found no violation, on multiple grounds.
Public business / quorum. Although three councilmembers physically attended, the discussion was not deliberative public business of the Council as a body. The non-engaging councilmember in the back of the room is not enough to convert the gathering into a § 10002(j) "meeting." The discussion was about a privately organized community event in which the City's potential involvement was logistical and modest.
Private email use. FOIA does not prohibit private email use by elected officials. Whether records held in private email accounts are subject to FOIA when they relate to public business is a separate question, but Platt did not allege the City had failed to produce any specific email.
City Administrator's role. The City asserted under oath that no decision was made at the meeting and that any references to the City Administrator's assistance were after-the-fact (and now moot, since another entity has taken over the event). Without evidence to contradict the sworn statements, no deliberation = no FOIA meeting.
Facebook statements. A Mayor's Facebook page acknowledging that he was acting in a private capacity at the event is not a FOIA violation. Whether the Mayor's framing was accurate or not is outside FOIA's scope.
What this means for you
If you are an elected official considering attending a community event in your private capacity
The line between public-capacity and private-capacity action matters. If a quorum of your governing body discusses or acts on public business, FOIA applies. If you are at a community event as a volunteer with no quorum-level deliberation about public business, FOIA generally does not. Document your role contemporaneously (e.g., social media posts identifying private capacity) and avoid deliberating with other elected officials about anything that might be construed as public business.
If you are a Delaware city or municipal attorney
When a councilmember mentions a private community event, ask: will a quorum of the Council show up? Will deliberation about public business occur? If yes to both, advise the Council to either avoid the event or notice it as a public meeting. If no, the gathering should fall outside FOIA's scope. Document the headcount and substance.
If you are a citizen who suspects elected officials are using "private capacity" as a workaround
Watch for two indicators that turn the analysis into a FOIA meeting: (1) a quorum of the body showing up and (2) deliberation or decision about public business. If you can point to specific decisions made (with documentation), that supports a FOIA challenge. Vague concerns about three councilmembers being in the same room are not enough on their own.
If you organize private community events that involve public officials
Document the structure clearly. If you are a private 501(c)(3) or volunteer committee, label your communications and meetings as such. When elected officials volunteer or attend, make clear they are doing so in their personal capacity. Keep public-business decisions out of the event-planning meetings.
If you are concerned about elected officials using private email for public business
The mere existence of private email use is not a FOIA violation. Records of public business held in those private accounts may still be subject to FOIA if they constitute "public records." If you suspect specific records exist that should be produced, file a targeted FOIA request and, if denied, a § 10005 petition citing specific records you believe exist.
Background and statutory framework
The same § 10002(j) "meeting" definition that governed 25-IB66 (less than a quorum, no public business discussion) applies here. The AG's analysis is consistent: a gathering attended by a quorum but without deliberation about public business is generally not a "meeting" subject to open-meetings rules.
The "private capacity" doctrine recognizes that elected officials are also citizens. They can volunteer for community events, attend gatherings, and make personal speech without triggering FOIA. The risk arises when public-business deliberation by a quorum sneaks into a nominally private gathering.
The sworn-affidavit standard from Judicial Watch v. Univ. of Del. applies. The City's three affidavits (Mayor, City Administrator, organizing councilmember) provided specific factual representations that the AG accepted.
The City's note that another entity has since assumed responsibility for the event is significant: it moots any concrete City involvement and undercuts the petition's claim that decisions were made.
Common questions
What if a quorum is physically present but doesn't speak among itself?
Likely not a meeting under § 10002(j). The 18-IB07 press conference precedent (referenced in 25-IB66) is on point: a quorum's mere presence without discussion of public business does not convert an event into a "meeting."
What constitutes "public business"?
Activities, decisions, and discussions related to the official functions of the public body. A community event run by a private committee is not, on its own, public business, even if elected officials participate.
Can elected officials use private email accounts for everything?
Practically, yes, but records of public business are still subject to FOIA. If you discuss a city zoning question on personal email, that email may be a "public record" under § 10002(o) and subject to FOIA. Use of private email is not per se prohibited, but it does not shield public-business records from disclosure.
Did the City Administrator end up running the Christmas event?
The opinion notes that another entity has since assumed responsibility for coordinating the event, mooting the City's involvement. The factual picture is moot.
What about the Mayor's Facebook posts?
FOIA does not regulate elected officials' social media. The Mayor's framing that he was acting in private capacity is a factual claim; whether the framing was accurate is for political and reputational accountability, not for the AG to resolve under § 10005.
What if I have specific evidence that a deal was struck at the meeting?
Then your FOIA petition should provide that evidence. The AG's analysis here turned on the absence of any specific evidence that public business was deliberated. If you have meeting notes, audio, or documents showing actual decision-making by a quorum, the analysis would shift.
What if the meeting was supposed to be public-capacity?
Then it should have been noticed under FOIA. The City's sworn position was that the meeting was a private-capacity discussion about a community event. If the City had said it was a public-capacity meeting, the analysis would track 25-IB66's quorum analysis or finding a violation if procedures were not followed.
Is "private capacity" a get-out-of-FOIA-free card?
No. The framework is fact-specific. The AG looks at whether the actual conduct of the meeting (sworn evidence about who spoke, what was discussed, whether deliberation occurred) supports the private-capacity characterization. A nominally private meeting where the council actually deliberated would still be a FOIA meeting.
Citations
- Statutes: 29 Del. C. § 10005 (petition process); § 10005(c) (burden of proof).
- Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
- Cross-reference: AG Opinion 25-IB66 (no-quorum, no-meeting analysis); AG Opinion 18-IB07 (quorum present but no deliberation not a meeting).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/12/16/25-ib64-12-16-2025-foia-opinion-letter-to-michael-platt-re-city-of-new-castle/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB64.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-IB64
December 16, 2025
VIA EMAIL
Michael Platt
[email protected]
RE: FOIA Petition Regarding the City of New Castle
Dear Mr. Platt:
We write in response to your correspondence alleging that the City of New Castle 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 City did not violate FOIA in holding the November 9, 2025 meeting. The remaining claims are outside the scope of this Office's authority to decide through this petition process.
BACKGROUND
A private committee, completely separate and apart from City government, holds an annual "Spirit of Christmas" event, but this year, the committee announced the event was cancelled. One councilmember and the Mayor sought to revive this event and met on November 9, 2025. This Petition followed.
In the Petition, you argue that the City violated FOIA in several ways. You allege that the organizing councilmember used a private email account to selectively invite citizens to the November 9, 2025 meeting, which is an improper communication means to conduct public business. As a quorum of three councilmembers attended the November 9, 2025 meeting, you contend that this meeting constituted a public meeting under FOIA, but the City failed to post a proper notice or follow the other open meeting requirements under FOIA. You assert that the November 9, 2025 meeting resulted in a decision that the City Administrator would assume responsibility for running the Spirit of Christmas event; you believe that this decision is public business which must be conducted during a properly noticed public meeting. You included a news article calling the meeting an "ad hoc group for Spirit of Christmas" and citing the Mayor giving thanks at the meeting for the City Administrator's assistance in organizing the event. You allege that the Mayor does not have authority to appoint the City Administrator for any duties, which you believe proves the decision was made at the November 9, 2025 meeting. Finally, you allege that statements made on the Mayor's official Facebook page, asserting that the Mayor and organizing councilmember were acting as private citizens for the event, and not in their public official roles, are inconsistent with how the meeting was conducted as a public meeting, and "posting announcements of government decisions derived from non-compliant meetings raises further questions regarding transparency and lawful execution of official authority."
The City, through its legal counsel, replied to the Petition on December 1, 2025 ("Response") and enclosed affidavits from the Mayor, City Administrator, and the councilmember who organized the November 9, 2025 meeting. The City acknowledges in its Response that a quorum of Council is three councilmembers, and three councilmembers attended this meeting. However, the Mayor and organizing councilmember attest that one of the councilmembers sat in the back and did not engage with other members or speak during the meeting. The City asserts that the meeting did not discuss public business, other than the City's presumed role in logistics for the event. The City argues that this does not constitute a public meeting of the Town Council subject to FOIA. Moreover, any references to the City's role at this meeting have been rendered moot, because another entity has since assumed responsibility for coordinating this event.
The City further asserts that the councilmember's use of a private email account is not prohibited under FOIA, and there is no allegation that the City failed to produce any such emails in response to a request. The City maintains that the Petition's assertion that the City Administrator was tasked with responsibility for the event at the meeting is not accurate and submitted sworn statements from a present councilmember and Mayor who attested there were no deliberations or decisions during the meeting. Finally, the City argues that the Facebook statements are not prohibited by FOIA, nor were they offered to circumvent FOIA's requirements; they were based on the Mayor and councilmember's belief they were participating in a volunteer capacity.
The AG's discussion concluded that, based on the City's sworn affidavits, the November 9, 2025 gathering was not a "meeting" under § 10002(j) (no deliberation about public business by a quorum), and the remaining claims about private email use and Facebook statements are not regulated by FOIA. The AG found no violation.
CONCLUSION
For the foregoing reasons, we conclude that the City did not violate FOIA in holding the November 9, 2025 meeting. The remaining claims are outside the scope of this Office's authority to decide through this petition process.