If a Delaware public body holds a virtual town hall with sign-in requirements and a waiting room, but only a few members attend, did they violate the open-meetings law?

Plain-English summary

The Redding Consortium for Educational Equity is a 24-member legislatively created body charged with developing a school redistricting proposal for Wilmington and northern New Castle County. Its quorum is 13 members. On November 18, 2025, it held a virtual town hall meeting with a Zoom sign-in/account requirement and a host-controlled waiting room. Brandy Topolski filed a FOIA petition alleging multiple violations: the access barriers, vague concerns about other meetings, treatment of Consortium records as University of Delaware records, and meeting-scheduling overlaps with other educational bodies.

The AG resolved the petition with a narrow scope.

The threshold question was whether the November 18 town hall was even a "meeting" under FOIA. Section 10002(j) defines a "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."

The Consortium's sworn evidence: less than a quorum (13 members needed; only one member spoke, six others were silent observers). The AG accepted that representation. With no quorum gathered for discussion or action, the gathering did not fall within the FOIA definition of a "meeting." So the open-meetings rules did not apply, and the access concerns (Zoom account requirement, host-controlled waiting room) could not violate them.

The AG cited prior opinions on the same point: 18-IB41 (no violation when a quorum attended a committee meeting but did not discuss or vote on public business) and 18-IB07 (a gathering of a quorum at a press conference was not a "meeting" because there was no discussion among the councilmembers).

Two other points:

1. The "vague concerns about other meetings" claim was dismissed as too unspecific to allow tailored response.

2. The Consortium voluntarily agreed to a positive change: it would no longer treat its records as the University of Delaware's records for FOIA purposes. (The University of Delaware has a special FOIA carve-out limiting access to non-research records, so attributing Consortium records to the University could improperly trigger that limit.) The Consortium committed to direct its FOIA coordinator to respond as the relevant public body custodian going forward.

3. The meeting-scheduling overlap claim was dismissed as outside FOIA's scope.

What this means for you

If you are a Delaware public body planning a virtual meeting

The "no quorum, no meeting" principle gives meaningful flexibility for events with members presenting or attending in observer capacity. But you should still document the headcount and the scope of activity (who spoke, what was discussed) in case anyone challenges. If a quorum DOES gather for discussion or action, FOIA applies fully, and access barriers like sign-in requirements or unannounced waiting rooms could be problematic.

If you are a citizen attending a virtual meeting and ran into access barriers

The remedy depends on whether the meeting is FOIA-covered. If a quorum was present and the body was conducting public business, sign-in walls and waiting rooms can be challenged. If less than a quorum was present, FOIA's open-meetings rules don't reach the gathering, and your remedy is political (raise it with the body), not legal.

If you are an open-government advocate

Track the quorum question carefully. Many public bodies hold "town halls," "informational sessions," and similar events with less than a quorum, which are not technically FOIA "meetings." That is a defensible structural choice, but the absence of FOIA coverage means no notice, no public comment requirement, and no meeting-minute requirement for those events. Pushing for quorum-attended deliberation in noticed meetings is the way to keep substantive decision-making in the open.

If you are a public body operating in support of another entity

The Consortium's voluntary correction here is instructive. Its records had been treated as the University of Delaware's records (apparently because the University provides administrative support). FOIA records-custody analysis turns on which body actually holds and uses the records, not which body provides administrative help. If you support a public body, work out custody attribution before a FOIA request lands.

If you organize Zoom meetings for public bodies

Two practical points. Sign-in / account requirements may be acceptable if the meeting is a non-FOIA event (less than a quorum), but for genuine FOIA meetings you should provide an account-free option (or simple call-in) so people who cannot or will not register can attend. Host-controlled waiting rooms are also a flag for a noticed FOIA meeting; they can be used to manage Zoom-bombing risk but should admit attendees promptly.

Background and statutory framework

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: quorum and discussion-or-action. Both must be present.

29 Del. C. § 10004 sets the open-meetings requirements: advance notice, posted agendas, public comment opportunity, meeting minutes. These apply only when § 10002(j)'s "meeting" definition is met.

29 Del. C. § 10005 is the petition process for alleged violations. Section 10005(c) places the burden of proof on the public body. Section 10005(e) requires petitions to be sufficiently specific (the scope-limiting provision).

The Judicial Watch sworn-affidavit standard applies. The Consortium's affidavit by the Assistant Policy Scientist stated under oath that less than a quorum was present and only one member spoke. That sworn statement carried the analysis.

The "no quorum, no meeting" doctrine has roots in earlier AG opinions: 18-IB41 (committee meeting attended by quorum where members did not discuss or vote on public business not a "meeting") and 18-IB07 (press conference attended by quorum of councilmembers not a "meeting" because no evidence of discussion among them).

Common questions

What counts as a "quorum"?

Whatever the public body's organizing rule says. For the Redding Consortium, 13 of 24 members. For a five-member town council, three. The number is set by the body's enabling legislation or charter.

Do silent observers count toward a quorum?

The opinion treats them as physically present but not engaged. The "for the purpose of discussing or taking action on public business" element is the key. A quorum of members physically present but not deliberating may still fall outside the meeting definition (consistent with 18-IB07's press-conference holding). But if discussion happens, even informally, the analysis tips toward "meeting."

Can a public body hold a town hall with no notice if less than a quorum attends?

The opinion says yes. The town hall is not a FOIA "meeting," so notice, agenda, public comment, and minutes requirements do not apply. The body can host informational events without triggering open-meetings law as long as no quorum gathers for discussion or action.

What if more members show up than expected and a quorum forms?

Then the gathering may transition into a "meeting" under § 10002(j), depending on whether discussion or action occurs. Public bodies should have a contingency plan: members can leave, the gathering can be reframed as observers, or the body can adjourn and reschedule with proper notice.

Why did the Consortium say its records belonged to the University of Delaware?

Likely because the University provides administrative support (the affidavit was signed by an Assistant Policy Scientist at the University). Records-custody analysis under FOIA looks at which body actually holds and uses the records for its functions. The Consortium's own records should be attributed to the Consortium, not to the University, even if the University maintains them as a support service.

What is the University of Delaware's special FOIA treatment?

University of Delaware records have a narrower FOIA scope under 29 Del. C. § 10002 (the University is treated as a public body only for certain records, primarily those funded by state appropriation). Attributing Consortium records to the University could improperly limit access. The Consortium's voluntary correction here addresses that concern.

Why was the meeting-scheduling overlap claim dismissed?

Because FOIA does not require public bodies to coordinate scheduling with other bodies. The AG's authority under § 10005 is limited to FOIA violations.

Was Topolski entirely unsuccessful?

Procedurally, the petition got no formal violation finding. But the Consortium's voluntary correction on records-custody attribution is a substantive win. Topolski's challenge prompted a structural change in how the Consortium treats its records, which will help future FOIA requests.

Citations

• Statutes: 29 Del. C. § 10002(j) (definition of meeting); § 10004 (open meetings); § 10005 (petition process); § 10005(c) (burden of proof); § 10005(e) (specificity requirement).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
• Prior AG opinions: 18-IB41 (committee meeting without discussion not a "meeting"); 18-IB07 (press conference without discussion among officials not a "meeting").

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/12/22/25-ib66-12-22-2025-foia-opinion-letter-to-brandy-topolski-re-redding-consortium-for-educational-equity/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB66.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-IB66
December 22, 2025
VIA EMAIL
Brandy Topolski
[email protected]

RE: FOIA Petition Regarding the Redding Consortium for Educational Equity

Dear Ms. Topolski:
We write regarding your correspondence alleging that the Redding Consortium for Educational Equity 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 the Consortium did not violate FOIA at the November 18, 2025 meeting. The remaining claims are not appropriate for consideration.

BACKGROUND
The Consortium is a "legislatively created body charged with developing a proposal for redistricting the school districts in the City of Wilmington and northern New Castle County . . . to recommend to the State Board of Education." The Consortium held a public meeting on November 18, 2025. This Petition followed.

In the Petition, you allege that the Consortium violated the open meeting requirements in several ways. You argue that the Consortium created impermissible access barriers to this meeting, because the November 18, 2025 meeting link required you to create or sign in with a personal account to join the meeting, and when you entered the meeting, you were placed in a host-controlled waiting room. You contend that the Consortium restricted public access to other previous unspecified meetings, including by using host-controlled waiting rooms, delaying or denying the admittance of attendees, and requiring logins through Zoom or third-party authentication. You also assert that the Consortium has ongoing transparency problems, including non-responsiveness to requests, difficulty obtaining records, confusion over the custody of records due to University's supportive role to the Consortium, denying or redirecting requests for Consortium records pursuant to the University of Delaware's FOIA exception, and failing to publish data, assumptions and analyses that are central to decision-making. You argue that the Consortium schedules meetings at the same time as other major educational bodies, making meaningful participation nearly impossible.

On December 1, 2025, the Consortium, through its legal counsel, replied to the Petition and enclosed the affidavit of the Assistant Policy Scientist who administered the relevant meeting ("Response"). The Assistant Policy Scientist attests the statements in the Response were correct to the best of the Assistant Policy Scientist's knowledge. The Consortium is comprised of twenty-four voting members, and thirteen members is a quorum. The Consortium explained that it has hosted multiple meetings to provide the public insight into and to receive feedback on redistricting proposals under consideration. At the November 18, 2025 Town Hall meeting, one Consortium member spoke, and six other members attended as silent observers; after the brief presentation, the floor was opened for comments and questions from the public. The Consortium argues that this meeting, which was attended by less than a quorum of members, was not a public meeting subject to FOIA's open meeting requirements.

Even if the meeting was subject to FOIA, the Consortium argues that the meeting was compliant with FOIA. The Consortium states that the Zoom settings for this meeting included a "feature that requires individuals who join a Zoom meeting from a web browser to create or sign into an account with Zoom before joining the meeting." The Consortium also acknowledges that all the attendees and members were admitted to a host-controlled waiting room prior to the meeting. Such practices, the Consortium argues, did not restrict the public's access, as evidenced by the large number of attendees. The Consortium contends that your broad claims about previous Consortium meetings are too general to allow for a tailored response. With respect to the treatment of the Consortium records as public records specific to the University of Delaware, the Consortium agrees that this practice should be altered and commits to direct the FOIA coordinator to respond as if the Consortium was the relevant public body custodian, rather than the University. Regarding the meeting scheduling, the Consortium notes that it endeavors to schedule according to times most convenient for all members and stakeholders but cannot guarantee that all Consortium members and the public can attend every meeting. The Consortium argues that any overlap in scheduling meetings does not constitute a violation of FOIA.

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

As an initial matter, the Petition's general allegations regarding unspecified past meetings and public records requests are not sufficiently specific to allow for consideration. Further, the Petition's final claim regarding scheduling overlaps between the meetings of public bodies that handle related matters is not addressed through the FOIA statute and is not appropriately considered through the FOIA petition process initiated under Section 10005.

The remaining issue is whether the Consortium violated FOIA at the November 18, 2025 meeting in providing virtual access through a host-controlled waiting room with a sign-in or account requirement. 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." The Consortium provided sworn statements that less than a quorum attended the meeting and only one member spoke during the meeting. Based on these representations under oath, we find that a quorum of members did not engage in discussions or taking action on public business; thus, we find this was not a "meeting" as defined by FOIA. We determine that the Consortium did not violate FOIA, as this meeting was not subject to the open meeting requirements.

CONCLUSION
For the foregoing reasons, we conclude that the Consortium did not violate FOIA at the November 18, 2025 meeting. The remaining claims are not appropriate for consideration.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Caroline M. McDonough, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General