How long do you have to file a Delaware FOIA open-meetings complaint after the meeting happened?

Official title

17-IB42 8/25/2017 FOIA Opinion Letter to Mr. Mike Kwiecien re: FOIA Complaint concerning Sussex County Planning & Zoning Commission and the Sussex County Council

Plain-English summary

Mike Kwiecien alleged that the Sussex County Planning & Zoning Commission and Sussex County Council violated FOIA's public notice requirements when they approved a conditional use ordinance and a later amendment to it, without adequate notice. The problem for his petition was timing: the Commission's approval happened at a 2002 meeting and the Council's amendment at a 2016 meeting, both well before Kwiecien's August 2017 complaint to the AG.

The AG explained that Delaware FOIA itself sets a strict outer limit for challenging a public body's action in court: 60 days after a citizen learns of the action, but never more than six months after the action itself, regardless of when the citizen found out. While the AG's office is not strictly bound by that same statutory deadline when handling petitions (as opposed to lawsuits), it follows the same six-month outer limit as a matter of longstanding policy, for fairness to public bodies that would otherwise face open-ended challenges to old decisions. Because both challenged meetings were far more than six months old, the AG found the petition untimely and did not reach the merits, though it noted Kwiecien could consult a private attorney about his options.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Delaware FOIA's deadline for challenging a public body's meeting or vote?

29 Del. C. § 10005(a) lets a citizen sue within 60 days of learning of the action, but never later than six months after the action itself. Delaware courts have treated the six-month mark as a hard cutoff (a statute of repose), even for citizens who did not learn of the action until after that period had already run.

Does the same six-month deadline bind the Attorney General when reviewing a FOIA petition?

Not as a strict statutory matter. The opinion noted that Section 10005(a)'s time limit applies to lawsuits filed in the Court of Chancery, not to administrative petitions to the AG under Section 10005(e). But the AG's office follows the same six-month period as a matter of policy and practice, "for fairness and practical reasons," and departs from it only in unusual circumstances.

Why does Delaware cut off old FOIA challenges instead of letting them proceed whenever discovered?

The opinion pointed to the value of finality: public bodies and citizens rely on governmental decisions, and allowing those decisions to be challenged indefinitely would create lasting uncertainty. The passage of time can also make it harder for a public body to prove what happened, since it bears the burden of proof in a FOIA proceeding under Section 10005(c).

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires public notice of public body meetings under § 10004. A citizen challenging the validity of a public body's action must sue within 60 days of learning of it and, in any event, within six months of the action itself under § 10005(a); Delaware's Court of Chancery has treated this six-month period as a statute of repose that bars suit even if the citizen did not learn of the action until later. The public body bears the burden of proof in a FOIA challenge under § 10005(c). Although this strict deadline formally applies to lawsuits rather than AG petitions, the AG's office has consistently applied the same six-month outer limit to petitions as a matter of policy, citing the same finality concerns that animate the statutory deadline.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10004 (public notice requirements for meetings)
• 29 Del. C. § 10005(a) (60-day/six-month deadline to challenge a public body's action)
• 29 Del. C. § 10005(c) (public body bears the burden of proof)
• Wilmington Federation of Teachers v. Howell, 374 A.2d 832 (Del. 1977) (finality and certainty in governmental decisions)
• Reeder v. Del. Dep't of Ins., 2006 WL 510067 (Del. Ch. Feb. 24, 2006) (60-day/six-month deadline under § 10005(a))
• Lechliter v. Del. Dep't of Natural Res., 2015 WL 7720277 (Del. Ch. Nov. 30, 2015) (six-month period is a statute of repose)
• Lechliter v. Del. Dep't of Natural Res., 2015 WL 9591587 (Del. Ch. Dec. 31, 2015) (delay beyond six months amounts to laches)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/25/attorney-general-opinion-no-17-ib42-august-25-2017/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/Attorney-General-Opinion-No.-17-IB42.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB42

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB42

August 25, 2017

VIA EMAIL

Mike Kwiecien

[email protected]

RE: August 17, 2017 Correspondence Regarding the Sussex County Planning & Zoning Commission and the Sussex County Council

Dear Mr. Kwiecien:

We write regarding your correspondence, received on August 17, 2017, alleging violations of Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") by the Sussex County Planning & Zoning Commission (the "Commission") and the Sussex County Council (the "Council"). Specifically, you allege that the Commission and the Council approved a conditional use ordinance and a subsequent amendment thereto without providing "public notice." [1] We have reviewed the record, which includes the audio recording of the Commission's July 27, 2017 meeting, and have determined that the challenged actions took place at meetings that were held in 2002 and 2016, respectively.

As a general matter, this Office does not address the merits of petitions alleging violations of FOIA's open meetings provisions when the alleged violations occurred more than six months prior to our receipt of the petition. [2] We have noted that this is a general rule that we adhere to "for fairness and practical reasons." [3] Among other reasons, [4] this practice reflects this Office's awareness of the strict time limitations that Delaware courts apply to FOIA claims. For example, the Court of Chancery has determined that FOIA requires a citizen wishing to challenge the validity of any action of a public body initiate suit within 60 days of learning of the action. [5] The Court has also determined that the statute "bars a FOIA claim filed after six months, even if the citizen did not learn of the public body's action until after that period," [6] and even if the citizen was previously unaware of his or her rights under FOIA. [7] Indeed, the statute provides: "Any citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action ." [8] While we are not bound by the time limitations set forth in 29 Del. C. § 10005(a), [9] we have reviewed the record and do not believe that the circumstances warrant a departure from our longstanding policy and practice. [10] As the challenged actions took place at meetings occurring more than six months prior to our receipt of your August 17, 2017 correspondence, it is our determination that your FOIA petition is untimely. [11]

You may wish to consult with counsel regarding your legal options.

Very truly yours,

/s/ Michelle E. Whalen

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

State Solicitor

cc:

LaKresha S. Roberts, Chief Deputy Attorney General (via email)

Everett Moore, Jr., Esq. (via email)

[1] While it is not clear from the record, we assume for purposes of this correspondence that you allege violations of the notice provisions of Delaware's FOIA, 29 Del. C. § 10004. Indeed, to the extent you allege that the Commission and the Council failed to provide notice consistent with County Code, the Council's Rules of Procedures, or some other provision, such allegations would fall outside the scope of FOIA.

[2] See, e.g., Del. Op. Att'y Gen. 12-IB11, 2012 WL 5894039, at 5 (Nov. 7, 2012); Del. Op. Att'y Gen. 16-IB14, 2016 WL 3462345, at 2 (June 9, 2016); Del. Op. Att'y Gen. 05-IB26, 2005 WL 3991284, at 10 n.3 (Aug. 29, 2005); Del. Op. Att'y Gen. 04-IB08, 2004 WL 771854, at 2 (Mar. 9, 2004); Del. Op. Att'y Gen. 00-IB05, 2000 WL 1092970, at 1 (Feb. 18, 2000); Del. Op. Att'y Gen. 97-IB23, 1997 WL 800821, at 1 (Dec. 23, 1997); Del. Op. Att'y Gen. 94-IO16 (Apr. 7, 1994); Del. Op. Att'y Gen. 93-IO28 (Sept. 21, 1993); Del. Op. Att'y Gen. 93-IO06 (Mar. 5, 1993).

[3] Del. Op. Att'y Gen. 02-IB10 (Apr. 24, 2002).

[4] For example, we have previously noted the unfairness and uncertainty that would result if decisions made by public bodies, and upon which citizens and officials rely, could be challenged at any future time. See, e.g., Del. Op. Att'y Gen. 06-IB02, 2006 WL 1242011, at 6 (Jan. 9, 2006) (citing Wilmington Federation of Teachers v. Howell , 374 A.2d 832, 836 (Del. 1977)); Del. Op. Att'y Gen. 12-IB11, 2012 WL 5894039, at 6 n.7 (recognizing that our "long-standing policy, like the statutory limitations period in FOIA § 10005(a), reflects a balance of competing interests and goals" including fostering "finality and certainty" in governmental decisions). We also note that the public body bears the burden of proof pursuant to 29 Del. C. § 10005(c), which its ability to satisfy might be prejudiced by the mere passage of time.

[5] Reeder v. Del. Dep't of Ins. , 2006 WL 510067, at *9 (Del. Ch. Feb. 24, 2006); 29 Del. C. § 10005(a).

[6] See id . at 9; see also Lechliter v. Del. Dep't of Natural Res. , 2015 WL 7720277, at 4 (Del. Ch. Nov. 30, 2015) ("[T]he statute of repose as provided by 29 Del. C. § 10005(a) is six months."); Lechliter v. Del. Dep't of Natural Res. , 2015 WL 9591587, at *15 (Del. Ch. Dec. 31, 2015) ("I find that the Plaintiff's failure to contest the alleged FOIA infractions within six months amounts to laches, by analogy to the statute of repose, and grant summary judgment in favor of the Defendants for the FOIA claims embedded in Count II.").

[7] Reeder , 2006 WL 510067, at *7 (stating that plaintiff's claim that his suit was untimely because he was unaware of FOIA "would be inadequate [to excuse his failure to file in the timeframe required by statute] even if it were true").

[8] 29 Del. C. § 10005(a) (emphasis added).

[9] See Del. Op. Att'y Gen. 06-IB01, 2006 WL 1242008, at 2 (Jan. 4, 2006) ("The sixty day/six month statute of limitations in Section 10005(a) applies only to suits a citizen may bring in Chancery Court. It does not apply to complaints under Section 10005(e) brought to the Attorney General's office for administrative review."); see also Del. Op. Att'y Gen. 97-IB23, 1997 WL 800821, at 1 (noting that this Office is not bound by the time limitations set forth in 29 Del. C. § 10005(a) but exercising its discretion in concluding that petitioner's delay of almost six months warranted a determination that the petition was untimely).

[10] Indeed, we note that you have indicated that you have retained private counsel and have fought the conditional use ordinance for years. We also note that you have specifically requested relief that only a court can grant.

[11] Your request for an ethics review is outside the scope of FOIA and, as such, is not addressed herein.