Did Delaware’s Birth to Three council violate FOIA by posting a meeting agenda and draft minutes late?

Plain-English summary

Delaware’s Birth to Three Interagency Coordinating Council acknowledged that an administrative oversight kept its July 28, 2026 agenda and physical anchor location off the State meeting website until too late. It also missed the online posting deadline for draft minutes of its April meeting. The AG found two FOIA violations, echoing the opinion’s conclusion that the council failed to “timely post its agenda” and “post its draft minutes ... within the required timeframe.”

The office recommended revisiting the July meeting’s topics and ratifying any votes at the September meeting, along with posting the April minutes. The council had said it would reconvene and revote and that the minutes had been posted; the opinion recorded these as the council’s proposed or reported steps, rather than a finding that every remedy was complete.

What this means for you

Members of infrequently meeting executive-branch bodies

The opinion applied the seven-day State website notice rule, the physical anchor-location requirement for virtual meetings when the specified emergency directives are absent, and the 20-working-day draft-minutes rule for executive-branch bodies meeting four or fewer times a year.

People following council meetings

The AG found both the late agenda and late draft minutes violated FOIA, despite the council’s explanation that administrative oversight caused the omissions.

Common questions

Q: Does a virtual Delaware public meeting need a physical anchor location? A: The opinion said yes when the emergency directives described in the statute are not in place; the location belonged in the timely posted notice and agenda for this meeting.

Q: When did this council have to post draft minutes?
A: The AG applied the rule for executive-branch public bodies that meet four or fewer times a year: draft minutes must be identified as such and posted to the designated State website within 20 working days after the meeting.

Q: What did the AG recommend after the July meeting?
A: Revisiting its topics and ratifying any votes at the September meeting, in addition to posting the April minutes.

Background and statutory framework

The opinion cited Delaware’s FOIA notice provision, virtual-meeting rule, and draft-minutes provision. The council’s affidavit attributed the missed postings to administrative oversight. The AG accepted the acknowledged facts as establishing violations and recommended remediation.

Citations and references

• 29 Del. C. § 10004(e)(5) (meeting notice and agenda).
• 29 Del. C. § 10006A (virtual meetings and anchor location).
• 29 Del. C. § 10004(f) (draft minutes).

Source

• Landing page: https://attorneygeneral.delaware.gov/2026/08/24/26-ib50-8-24-26-foia-opinion-letter-to-dr-amy-roe-re-birth-to-three-interagency-coordinating-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/09/Attorney-General-Opinion-No.-26-IB50.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION: (302) 577-8400
CRIMINAL DIVISION: (302) 577-8500
FAMILY DIVISION: (302) 577-8400
FRAUD DIVISION: (302) 577-8600
DIVISION OF CIVIL RIGHTS & PUBLIC TRUST: (302) 577-5400
FAX: (302) 577-2610

Office of the Attorney General of the State of Delaware
Attorney General Opinion No. 26-IB50
August 24, 2026

Via Email
Dr. Amy Roe
[email protected]

Re:

FOIA Petition Regarding the Birth to Three Interagency Coordinating Council

Dear Dr. Roe:
We write in response to your correspondence alleging that the Birth to Three Interagency Coordinating Council (“ICC”) violated Delaware’s 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 of whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that the ICC violated FOIA by failing to: (1) timely post its agenda for its July 28, 2026 meeting with an anchor location on the State meeting website; and (2) post its draft minutes for the April meeting online within the required timeframe.

Background
This Petition alleges that the ICC violated FOIA by failing to post an agenda with an anchor location for its July 28, 2026 quarterly meeting within the requisite seven days in advance of the meeting. In addition, you assert that the ICC failed to electronically publish the draft minutes for its April 2026 meeting, as required of public bodies in the executive branch that hold meetings less than four times a year. On August 5, 2026, the ICC, through its legal counsel, replied to the Petition (“Response”). The ICC included an affidavit from the Bureau Chief of the Division of Public Health, who attests that the ICC’s failure to timely post the agenda, anchor location, and draft meeting minutes was the result of administrative oversight. As remediation, the ICC proposes to reconvene the July 28, 2026 meeting and revote on the items discussed at that meeting at its September 8, 2026 meeting,

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which will have a physical anchor location. The ICC also states that April 28, 2026 meeting minutes have been posted.

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.” 1 The public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain circumstances, a sworn affidavit may be required to meet that burden. 3 FOIA requires a public body in the State’s executive branch to post its meeting notice and agenda seven days in advance of a public meeting on the State public meeting website. 4 Virtual meetings also require a physical anchor location when the emergency directives described in the statute are not in place. 5 FOIA has specific requirements for public bodies in the executive branch who meet four or fewer times a year, including electronically posting “draft minutes of open public meetings, identified as ‘draft minutes,’ to the designated State website approved by the Secretary of State within 20 working days after the conclusion of the meeting. 6 Consistent with the ICC’s acknowledgements, we determine that the ICC violated FOIA in these respects and recommend that the ICC remediate these violations by revisiting the topics discussed and ratifying any votes that occurred at its July 28, 2026 meeting during its September meeting, in addition to posting the minutes for the April meeting, as required.

Conclusion
For the foregoing reasons, we conclude that the ICC violated FOIA by failing to: (1) timely post its agenda for its July 28, 2026 meeting with an anchor location on the State meeting website; and (2) post its draft minutes for the April meeting online within the required timeframe.

1

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).

2

29 Del. C. § 10005(c).

3

Judicial Watch, Inc., 267 A.3d at 1012.

4

29 Del. C. § 10004(e)(5).

5

29 Del. C. § 10006A.

6

29 Del. C. § 10004(f).
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Very truly yours,

__________
Daniel Logan
Chief Deputy Attorney General

cc:

Patrick J. Smith, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

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