If a Delaware public body's hybrid (in-person plus virtual) meeting cuts off a remote attendee in the middle of public comment, has the public body broken the open-meeting law?

Plain-English summary

Dr. Amy Roe joined the Lead-Based Paint Remediation Certification Committee's January 7, 2026 meeting remotely through Microsoft Teams. Her audio disconnected while she was commenting. She alleged that the on-site meeting continued after she lost access and that part was not recorded. The Committee's lawyer replied that a technical failure, possibly a local power outage, interrupted the connection and that the chair adjourned after troubleshooting. The Committee said Roe's complete comment was captured on the recording and that it offered her another opportunity to speak or submit comments.

The AG found a FOIA violation because the Committee did not prove its account of events under oath. Section 10006A(d)(4) says a technological problem that limits public access does not itself invalidate a virtual meeting or its actions. But the public body bears the burden of showing compliance, and essential facts offered to carry that burden must be sworn. Counsel's unsworn response left the AG unable to determine the petition's factual issues. Since the complete comment was recorded, the AG recommended that the Committee present it during the next public meeting's comment period. The opinion did not find that the cutoff was intentional or decide whether an unrecorded on-site session occurred.

What this means for you

If your remote public comment was interrupted

A technical problem does not automatically invalidate the meeting. In this case, the AG found a violation because the Committee had not submitted sworn evidence supporting its account. The opinion recommends presenting Roe's recorded comment at the next meeting; it does not order the meeting invalidated.

If you run a Delaware public meeting

When a petition disputes what happened during a virtual meeting, the body's essential factual account needs competent sworn support. Here, counsel described the disconnection and adjournment without an affidavit, so the Committee failed to carry its burden.

Background and statutory framework

Delaware FOIA requires open meetings and time for public comment. Section 10006A(c)(6) addresses electronic monitoring and comment at virtual meetings. Section 10006A(d)(4) prevents a technological access problem, by itself, from invalidating a virtual meeting or action taken there.

29 Del. C. § 10005(c) places the proof burden on the public body. The opinion cites Judicial Watch for the rule that essential factual representations offered to meet that burden must be under oath. Footnote 11 says courts, rather than the AG in this petition, may invalidate meeting actions or impose other judicial remedies.

Common questions

Did the AG find that the Committee intentionally cut Roe off?

No. The Committee attributed the interruption to a technical failure, but its explanation was unsworn. The AG said the record did not permit it to determine the disputed factual issues.

Does a technology failure automatically invalidate a virtual meeting?

No. Section 10006A(d)(4) expressly says a technology problem limiting public access does not invalidate a virtual meeting or an action taken there.

What remedy did the AG recommend?

Present Roe's full recorded comment during the next public meeting's comment period. The AG noted that judicial remedies such as invalidating actions are for courts.

Citations

• Statutes: 29 Del. C. § 10004(a) (public comment); § 10005(c) (burden of proof); § 10006A(c)(6) (electronic access and comment); § 10006A(d)(4) (technological problem).
• Case: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/02/19/26-ib08-02-19-2026-foia-opinion-letter-to-amy-roe-re-lead-based-paint-remediation-certification-committee/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/02/Attorney-General-Opinion-No.-26-IB08.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
KATHLEEN JENNINGS DEPARTMENT OF JUSTICE FAMILY DIVISION (302) 577-8400 ATTORNEY GENERAL 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
WILMINGTON, DELAWARE 19801
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 26-IB08

February 19, 2026

VIA EMAIL

Amy Roe, Ph.D.
[email protected]

RE: FOIA Petition Regarding the Lead-Based Paint Remediation Certification Committee

Dear Dr. Roe:

We write in response to your correspondence, alleging that the Lead-Based Paint Remediation Certification Committee, Delaware State Housing Authority, 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 Committee violated FOIA by failing to meet its burden to demonstrate its compliance with FOIA.

BACKGROUND

The Lead-Based Paint Remediation Certification Committee held a meeting on January 7, 2026, with two participation methods: a physical anchor location and a virtual option through Microsoft Teams. You attended this meeting through virtual means. While you were giving public comments during the meeting, your audio was disconnected, and you believe that the meeting participants at the on-site location could no longer hear you. You allege that although your public comment was captured in full on the meeting recording posted online, shortly after your comment and without any audio from the meeting room, the meeting abruptly ended. You allege that after you were disconnected, the meeting at the on-site location resumed, but you were unable to observe this portion of the meeting, and it was not captured on the meeting recording. This Petition followed.
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 In the Petition, you seek determinations of whether the Committee violated FOIA by (1) prohibiting your ability to provide public comment; (2) resuming a hybrid public meeting during public comment in the anchor location; and (3) potentially preventing additional public comments after your comment. You also inquire about the remedies for any such violations.

The Committee, through its legal counsel, replied to this Petition on January 29, 2026 (“Response”). The Committee states that a technical failure occurred during the meeting outside of the Committee’s control; it believes the disconnection was the result of a local power failure. The Committee asserts that you appeared to have lost audio or were disconnected mid-comment, and after attempting to troubleshoot, the Committee shortly thereafter lost connection to the Microsoft Teams meeting. The Committee states that “[d]ue to the technical failure, the Committee Chair promptly adjourned the meeting.” 1 The Committee verifies that its “inability to hear the conclusion of [your] remarks was due to a loss of signal, not any action taken to prevent or limit public comment.” 2 The Committee points out that, despite this disconnection, you were able to provide a full public comment, which was captured on the meeting recording. Following the meeting, the Committee asserts that you were contacted about your concerns and offered the opportunity to speak publicly at the next meeting and submit public comments electronically, to be preserved with the meeting records. The Committee asserts the offer was declined.

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.” 3 The public body has the burden of proof to demonstrate compliance with FOIA. 4 In certain circumstances, a sworn affidavit may be required to meet that burden. 5

FOIA mandates that the meetings of public bodies, with limited exceptions, be open to the 6 public and when certain requirements are satisfied, permits public bodies to hold a meeting virtually. 7 A virtual meeting is a meeting of a public body that one or more members attend using

1
Response.
2
Id.
3
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
4
29 Del. C. § 10005(c).
5
Judicial Watch, Inc.,267 A.3d at 1008-1012.
6
29 Del. C. § 10004.
7
29 Del. C. § 10006A.
2 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.” 8 Under FOIA, every open meeting, including virtual meetings, must include “time for public comment” during the meeting, which may be subject to reasonable restrictions on the length of the public comment period and the “amount of time allotted for each public comment.” 9 Section 10006A(d)(4) provides that a “technological problem that prevents or limits public access otherwise required under this chapter does not invalidate a virtual meeting or an action taken at a virtual meeting.”

The Committee has the burden of proof to demonstrate its compliance with FOIA and when presenting the essential facts to support its position, those representations must be made under oath. 10 In this case, the Committee’s counsel describes the circumstances surrounding the disconnection during your public comment and this meeting, but the statements are not sworn. On this record, we cannot determine the Petition’s issues and are compelled to find a violation of FOIA occurred due to the Committee’s failure to satisfy its burden. As your complete public comment was recorded, the Committee is recommended to present your full public comment during its next public meeting comment period. 11

CONCLUSION

For the reasons set forth above, we conclude that the Committee violated FOIA by failing to meet its burden to demonstrate its compliance with FOIA.

8
29 Del. C. § 10006A(c)(6).
9
29 Del. C. § 10004(a).
10
Judicial Watch, Inc.,267 A.3d at 1010-11 (“Thus, the University is asking this Court to determine that it has met its burden of proof, fully resolving the dispute, based solely on these factual representations. But the resolution of a legal action must rest on competent, reliable evidence. And the Court has held that when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath. A statement made under oath, like a sworn affidavit, will ensure that the court’s determination regarding the public body’s satisfaction of the burden of proof is based on competent evidence.”). 11 The authority to invalidate a public body’s action at a meeting, or to impose other types of judicial remedies, is reserved for the courts. 29 Del. C. § 10005.

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 Very truly yours,

/s/ Dorey L. Cole
_______
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Patricia A. Davis
________
Patricia A. Davis
State Solicitor

cc: Bryce A. Gates, Esq., General Counsel, Delaware State Housing Authority

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