When a Delaware city reschedules a council meeting because of bad weather and gives less than 7 days' notice for the new date, is 'inclement weather' enough of an explanation to satisfy FOIA, or does the city have to also explain why the actual agenda items can't wait?
Plain-English summary
Dover City Council had a regular meeting scheduled for February 23, 2026. Bad weather forced a cancellation, and the meeting was rescheduled to February 25, 2026, with the new agenda posted a few days before. The new agenda contained 26 items, including the final reading of Ordinance No. 2025-21. The agenda noted that the meeting was rescheduled with less than 7 days' notice "due to inclement weather closings."
Shyanne Miller filed a FOIA petition arguing that the rescheduled meeting did not give the public sufficient notice to prepare for the final vote on the ordinance. The City responded that the inclement-weather explanation satisfied FOIA's special-meeting notice rules.
The AG split the analysis. Yes, rescheduling because of bad weather is reasonable. But the notice failed because it explained only why the original meeting was cancelled, not why each of the 26 agenda items, especially the final reading of the ordinance, had to be considered with less than 7 days' notice. FOIA's rule on special or rescheduled meetings requires the public body to demonstrate "exigency or compelling need" for considering specific items on truncated notice.
The AG recommended the City Council discuss the ordinance again and ratify its vote at the next properly noticed Council meeting.
What this means for you
If you are a Delaware municipal clerk or council attorney handling a rescheduled meeting
The "inclement weather" explanation alone is not enough. When you reschedule a meeting on less than 7 days' notice, the agenda must include a separate explanation of why the agenda items cannot wait until a properly noticed meeting. For each substantive item (especially final readings, ordinance adoptions, votes on contracts), document the exigency: a deadline, a contractual obligation, a public safety concern, a regulatory window. If the only reason is "we want to get things done," that is not exigency under FOIA.
A more cautious practice when rescheduling because of weather:
- Reschedule for at least 7 days out if at all possible. That avoids the notice problem entirely.
- If rescheduling for less than 7 days is necessary, limit the agenda to truly time-sensitive items. Defer the rest to a properly noticed regular meeting.
- State the exigency for each non-routine item. Not just the reason for the postponement.
If you are a Delaware council member
When you walk into a rescheduled meeting on short notice, the AG opinion gives you a basis to ask: are we actually urgent on each of these items? If the agenda includes a final reading of an ordinance that came up under normal circumstances, suggest deferring that item to the next regular meeting. That avoids the FOIA risk and demonstrates respect for public input.
This opinion's specific remedy (re-discuss and ratify) is significant. The AG could not invalidate the ordinance vote (only the Court of Chancery can), but the City was directed to address the issue at a properly noticed meeting. If you participate in the ratification, do it openly, with full public comment, so it is meaningful and not perfunctory.
If you are a citizen frustrated by short-notice meetings
This opinion strengthens your hand. The seven-day notice rule is the default. Public bodies cannot use vague justifications ("scheduling conflicts," "weather delays") to truncate notice on substantive items. Your remedy is a § 10005 petition. Even when the AG cannot invalidate the action, the public body usually has to address it at a later, properly noticed meeting, which gives the public a real opportunity to weigh in.
If you are a journalist covering local government
This opinion is a useful citation. Watch for:
- Rescheduled meetings within 7 days of cancellation.
- Long agendas at rescheduled meetings (Dover had 26 items).
- Final readings of ordinances at rescheduled meetings.
- Boilerplate explanations like "inclement weather" without item-specific justification.
When those happen, you have a story worth covering, and the public body is at FOIA risk.
Common questions
Q: How much notice do Delaware public bodies normally have to give for meetings?
A: Section 10004(e)(2): seven days for a regular meeting. For special or rescheduled meetings, "as soon as reasonably possible, but in any event no later than 24 hours before such meeting" (§ 10004(e)(3)).
Q: Doesn't bad weather count as a good reason to reschedule?
A: Yes, the AG agreed that inclement weather justifies rescheduling. But the rescheduling justification (why the original meeting could not happen) is different from the agenda-item justification (why each substantive item has to be heard at the new meeting on truncated notice). The opinion requires both to be addressed.
Q: What does "exigency or compelling need" mean?
A: It is a fact-specific standard. Examples cited from prior AG opinions:
- 07-IB09 (2007): a compelling need to meet on less than 7 days' notice when an election was a week away and the elections committee needed to provide voter information.
- 05-IB05 (2004): no compelling need shown when the Town Council met on three days' notice to discuss removal of the Town Solicitor.
A real deadline, a public-safety urgency, or a fast-moving event can justify exigency. A general desire to move along a legislative item cannot.
Q: What did the AG do about the ordinance vote that already happened?
A: The AG could not invalidate it. Section 10005(a) reserves invalidation to the Court of Chancery. But the AG recommended that the City Council "discuss this ordinance and ratify its vote at its next regular Council meeting held in compliance with FOIA's open meeting requirements." That is a meaningful remedy: the public gets a chance to comment, and the City essentially redoes the vote with proper notice.
Q: Is this rule too strict for small towns dealing with weather emergencies?
A: The opinion's recommendation, that public bodies "limit the discussion at an emergency or special meeting to those issues which justify deviating from the seven-day notice rule," is a moderate response. You are not required to take no action; you just need to limit the agenda to the items where the urgency is real.
Background and statutory framework
Delaware's open-meeting framework starts with FOIA's purpose statement in § 10001: "public business be performed in an open and public manner so that our 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."
Section 10004(e) sets the notice requirements:
- Subsection (e)(2): seven days for regular meetings.
- Subsection (e)(3) and (e)(4): 24-hour minimum for special or rescheduled meetings, with the public notice including "an explanation as to why [7 days' notice] could not be given."
Prior AG opinions had required this explanation to address why specific agenda items could not wait. 97-IB18 (1997) said it is "the better practice, consistent with the purposes of FOIA, to limit the discussion at an emergency or special meeting of a public body solely to those issues which justify deviating from the seven-day notice rule." 17-IB20 (2017) interpreted FOIA "to require a public body to demonstrate exigency or compelling need to justify holding a special meeting." This 26-IB15 opinion applies that line of authority to a 26-item rescheduled-meeting agenda and finds it lacking.
The remedy framework is also worth understanding. Section 10005(a) says that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." Only the courts can invalidate. The AG can recommend remedies (re-discuss and ratify) but cannot order them. Cases like Ianni (1986) and Chemical Industry Council (1994) establish that "the remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests."
Citations and references
Statutes:
- 29 Del. C. § 10001 (purpose)
- 29 Del. C. § 10004 (open meetings, notice)
- 29 Del. C. § 10005 (enforcement)
Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
- Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
Prior AG opinions:
- Del. Op. Att'y Gen. 97-IB18 (Sept. 2, 1997)
- Del. Op. Att'y Gen. 07-IB09 (May 10, 2007)
- Del. Op. Att'y Gen. 17-IB20 (July 12, 2017)
- Del. Op. Att'y Gen. 05-IB05 (Feb. 22, 2004)
Source
- Landing page: https://attorneygeneral.delaware.gov/2026/04/08/26-ib15-04-08-2026-foia-opinion-letter-to-shyanne-miller-re-city-of-dover/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/04/Attorney-General-Opinion-No.-26-IB15.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 26-IB15
April 8, 2026
VIA EMAIL
Shyanne Miller
[email protected]
RE: FOIA Petition Regarding the City of Dover
Dear Ms. Miller:
We write in response to your correspondence alleging that the City of Dover 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 violated FOIA by failing to properly notice its rescheduled meeting.
BACKGROUND
The Petition alleges that the Dover City Council scheduled a regular meeting for February 23, 2026 with an agenda posted a few weeks in advance, but the City cancelled and rescheduled this meeting to February 25, 2026 due to inclement weather. The agenda for the rescheduled February 25, 2026 meeting indicated that "this meeting has been rescheduled with less than seven (7) [days'] notice due to inclement weather closings," and several revisions to the initial agenda were made, including a note that consideration of Ordinance No. 2025-21 was changed to a final reading. This Petition alleges that the agenda for this rescheduled meeting was posted a few days before the meeting, which did not give sufficient notice of the final vote on this ordinance under FOIA.
On March 18, 2026, the City, through its legal counsel, responded to this Petition ("Response"). The City argues that it did not violate FOIA in noticing this agenda item. The City asserts that the agenda indicated "the meeting was rescheduled to take place on February 25 on less than seven days' notice 'due to inclement weather closings.'" As the agenda stated the explanation and the agenda was posted a few days before the meeting, the City contends it met the requirements of Section 10004(e)(4) to hold a rescheduled meeting. In an affidavit, the City Solicitor asserted, under oath, that the February 25, 2026 meeting notice and agenda were provided as soon as reasonably possible under the circumstances. Additionally, the City argues that the agenda for the initially scheduled meeting was posted a few weeks prior, which provided notice that the proposed ordinance would be discussed; and as agendas are only required to give a general statement of major issues to be discussed, this item was sufficiently described to provide notice this topic would be discussed. The City also points out that the public had several days' advance notice that a final reading, rather than a first reading, was scheduled to occur.
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." In any action brought under Section 10005, 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.
Section 10004(e)(2) of the FOIA statute requires that a public body give seven days' advance notice of a regular meeting. For any special or rescheduled meeting, the public body must give public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting." A "special or rescheduled meeting" is defined as "one to be held less than 7 days after the scheduling decision is made." "The public notice of a special or rescheduled meeting [must] include an explanation as to why [7 days' notice] could not be given." This Office has previously advised that "it is the better practice, consistent with the purposes of FOIA, to limit the discussion at an emergency or special meeting of a public body solely to those issues which justify deviating from the seven-day notice rule." Additionally, the public body's authority to call a special or rescheduled meeting is not absolute, and "in prior opinions, we have interpreted FOIA to require a public body to demonstrate exigency or compelling need to justify holding a special meeting."
Here, the City Council's need to reschedule its meeting due to inclement weather is reasonable. However, we determine that the notice rescheduling the meeting for a few days later was not sufficient under FOIA. Specifically, the rescheduled meeting agenda included the reason, "inclement weather," for giving less than seven days' notice for considering these agenda items at the new, rescheduled meeting. This explains why the February 23, 2026 meeting needed to be rescheduled, but does not explain, as required by FOIA, the need to consider these agenda items, including the proposed ordinance, with less than seven days' notice. As such, we found a violation in this regard.
Having found that the City violated FOIA, we consider whether any remediation is appropriate to recommend. Section 10005(a) states that any "action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery." The authority to invalidate a public body's action, or to impose other relief, is reserved for the courts. The Delaware Court of Chancery stated that the "remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." In determining whether invalidation is appropriate, the court will consider the impact of "adverse consequences upon innocent parties." In this case, we recommend that the City Council discuss this ordinance and ratify its vote at its next regular Council meeting held in compliance with FOIA's open meeting requirements. This agenda was comprised of twenty-six items for the Council's consideration. The explanation for the shorter notice for these items was also not included in the agenda.
CONCLUSION
For the reasons set forth above, we conclude that the City violated FOIA by failing to properly notice its rescheduled meeting.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Daniel A. Griffith, City Solicitor