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 attended a hybrid meeting (in-person plus virtual) of the Lead-Based Paint Remediation Certification Committee through Microsoft Teams. While she was giving public comment, her audio was disconnected and the meeting then ended abruptly. According to her, the in-person attendees could no longer hear her, the meeting then resumed at the on-site location after she was disconnected, and the resumption was not captured on the recording. She filed a FOIA petition.
The Committee's lawyer responded that the disconnection was a technical failure (likely a local power outage), not a deliberate cutoff, and that the Chair adjourned the meeting because of the failure. The Committee also offered Dr. Roe the chance to speak at the next meeting or submit her comments electronically.
The AG found a FOIA violation, but on a narrow ground. Under FOIA, technical glitches do not automatically invalidate virtual meetings (29 Del. C. § 10006A(d)(4)). But the public body still has to prove compliance, and proof has to be under oath. The Committee's lawyer's response described the events but was not a sworn affidavit, so the Committee did not meet its burden. The AG recommended that the Committee present Dr. Roe's full public comment at its next meeting (since the recording captured her full comment) as a remedy.
What this means for you
If you chair or staff a Delaware public body that holds hybrid meetings
Have a documented protocol for tech failures. When something goes wrong on the virtual side, your minutes and any later FOIA response should record what happened, when, who decided to adjourn, and what alternatives were offered to disconnected speakers. If a petition is filed, prepare a sworn affidavit from the chair or staff member with personal knowledge. Counsel's unsworn description of events does not satisfy the burden under Judicial Watch.
A few additional concrete practices flowing from this opinion:
- If a public commenter's audio drops in the middle of comments, pause and try to reconnect before adjourning.
- If the meeting resumes (in person or virtually) after a disconnection, that resumption is part of the public meeting and must continue to comply with FOIA's openness requirements (recording, public access, etc.).
- Consider preserving the speaker's submitted written comments for the record, and read them at the next meeting if the speaker was cut off.
If you were a remote public commenter cut off mid-comment
You have a path to challenge the disruption under FOIA. File a petition under § 10005 with the Delaware Department of Justice. The Committee or board will have to respond, and (per Judicial Watch) it will need to put its explanation into a sworn affidavit. That puts pressure on the public body to either acknowledge the issue or invest the time and credibility to defend it formally.
The AG's preferred remedy here was to have your full public comment read into the record at the next meeting. That is a useful precedent: when a tech failure prevents a comment from being heard but the recording captured it, ask the body to read it at the next meeting.
If you are an attorney advising a Delaware public body
This opinion is a clear procedural lesson. Even when the underlying facts probably absolve your client (a genuine tech failure), submit your client's response with a sworn affidavit. The substance may be fine, but the procedural failure is enough for the AG to find a violation.
If you are a member of the public who attends Delaware public meetings remotely
Section 10006A guarantees you the right to monitor virtual meetings and to provide public comment if the body provides a comment opportunity. If something goes wrong, document it (screenshots, time-stamped notes, recording where available) and file a petition. Bear in mind that a one-time tech failure does not invalidate the meeting under § 10006A(d)(4), but a public body that cannot prove compliance can still be found in violation.
Common questions
Q: Did the Committee actually cut off Dr. Roe's audio on purpose?
A: The Committee's lawyer said no, and described a likely power failure. The AG did not find that the cutoff was intentional. The violation is narrower: the Committee did not put its explanation under oath, so it did not satisfy the burden under FOIA.
Q: What is § 10006A(d)(4) and why does it matter?
A: It says: "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." That protects public bodies from automatic invalidation when tech fails. But it does not free them from the procedural burden of proving compliance.
Q: What does the public body have to put in an affidavit?
A: Specific facts. Who decided to adjourn? When? Was the disruption a power outage, a software glitch, or something else? What was offered to the disconnected speaker? The Judicial Watch case requires more than generalized statements; it requires details a court could review.
Q: I had to submit comments by email after my audio cut out. Does that satisfy FOIA?
A: Probably yes for the basic right to comment. Section 10006A allows electronic public comment as an option. But it does not relieve the public body of the duty to provide reasonable virtual access during the meeting itself. If recurring tech problems prevent meaningful in-meeting participation, that pattern could itself become a FOIA issue.
Q: What remedy did the AG suggest?
A: That the Committee read Dr. Roe's full public comment (which was on the recording) at the next public meeting comment period.
Background and statutory framework
Delaware FOIA, 29 Del. C. ch. 100, requires open meetings of public bodies, with limited exceptions. Section 10004 sets the general open-meeting rules. Section 10006A allows virtual meetings if certain conditions are met:
- Members of the public must be able to "monitor the meeting" via electronic means.
- Members of the public must be able to "provide public comment, if the public body is required to accept, or provides an opportunity for, public comment."
- 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" (§ 10006A(d)(4)).
When a citizen alleges a violation, the public body bears the burden of proof under § 10005(c). Under Judicial Watch v. Univ. of Del. (Del. 2021), that burden requires a sworn affidavit when the facts are disputed. Generalized statements from counsel are not enough.
The opinion is also a practical reminder that adjourning a meeting in the middle of public comment is itself a sensitive moment. Even when the adjournment is driven by a real tech failure, the public body should leave a clear record so a future challenge can be addressed without finding a procedural violation.
Citations and references
Statutes:
- 29 Del. C. § 10004 (open meetings)
- 29 Del. C. § 10005 (enforcement)
- 29 Del. C. § 10006A (virtual meetings)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) (sworn affidavit requirement)
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
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. 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.
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." 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." 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." 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.
FOIA mandates that the meetings of public bodies, with limited exceptions, be open to the public and when certain requirements are satisfied, permits public bodies to hold a meeting virtually. A virtual meeting is a meeting of a public body that one or more members attend using 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." 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." 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. 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.
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.
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