Does Delaware FOIA cover a city council president's decision to declare a colleague's seat forfeited and to lock him out of public meetings?

Official title

20-IB28 11/9/2020 FOIA Opinion Letter to Councilmember Samuel Guy re: FOIA Complaint Concerning the City of Wilmington

Plain-English summary

Wilmington Councilmember Samuel Guy filed a FOIA petition arising from a dispute over another councilmember's residency. In July 2020, the City Council President sent that councilmember a letter declaring his seat forfeited under the City Charter's residency rules. On August 20, 2020, the Council held a virtual meeting and, according to the petition, did not give the affected councilmember the access codes, agenda, or his paycheck. Guy argued FOIA required the forfeiture to be addressed in a public Council meeting, that the President's solo letter was an unlawful "meeting of one," and that all actions taken at meetings excluding the disputed councilmember should be voided.

The AG declined to find a FOIA violation. FOIA does not require a council to put any particular topic on its agenda. The Council President acting alone is a "body of one" not subject to FOIA's open meeting rules. Guy's petition did not present evidence that any actual meeting of a quorum had occurred outside the public eye, which a complainant must do to make a prima facie open-meetings case. The remaining claims, that the President or Mayor lacked authority to take particular actions, were municipal-law disputes outside FOIA's reach.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Three FOIA principles converged in this opinion:

1. FOIA does not dictate agendas. Under AG Opinion 17-IB09 (2017), itself echoing 07-IB24 (2007), FOIA does not say when a public body must take up a matter of public business. So a complaint that the Council "should have" addressed forfeiture in an open meeting is outside FOIA, even if it might be a sound municipal-law claim.

2. Body of one is exempt from open meetings. 29 Del. C. § 10004(h)(6) exempts a public body of one from the open meeting rules. A single Council President writing a letter to a single councilmember is not a "meeting" within FOIA, no matter how consequential the letter.

3. The petitioner must establish a prima facie meeting. The opinion states that a complaining party must make a prima facie showing that a meeting may have occurred, at which point the burden shifts to the public body to prove no violation occurred. Here, the only evidence was a single letter from the Council President, which did not meet that threshold.

The opinion also reasserted that the AG's FOIA petition jurisdiction does not reach municipal-law questions about who can issue letters, declare forfeitures, or distribute paychecks. Those questions belong to the City Charter, civil litigation, and the Council itself.

Common questions

Q: Why didn't the AG decide whether the forfeiture and lockout were proper?
A: The opinion states that the remaining allegations, that the Mayor and Council President lacked authority to forfeit a seat, bar the councilmember from meetings, or withhold a paycheck or materials, are matters of municipal law outside the scope of FOIA, so it made no determination on them.

Q: What would have made this a real open-meetings claim?
A: The opinion explains that a complaining party must first make a prima facie showing that a meeting (a quorum gathering to discuss or act on public business) may have occurred, at which point the burden shifts to the public body. Here, the only evidence was that the Council President sent a letter, which did not meet that threshold.

Q: Does "body of one" mean a single official can act outside the open meeting rules?
A: For FOIA's open meeting rules, yes. The opinion states that a single person cannot be subject to the open meeting requirements, and that the Council President acting alone, "whether properly or not," does not trigger them. Section 10004(h)(6) exempts a public body with one member.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(g) (definition of "meeting")
• 29 Del. C. § 10004 (open meeting requirements)
• 29 Del. C. § 10004(h)(6) (body-of-one exemption)
• 29 Del. C. § 10005 (FOIA petition process)
• Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247 (Apr. 25, 2017)
• Del. Op. Att'y Gen. 17-IB08, 2017 WL 1317850 (Apr. 3, 2017) (prima facie meeting)
• Del. Op. Att'y Gen. 05-IB10, 2005 WL 1209240 (Apr. 11, 2005)
• Del. Op. Att'y Gen. 16-IB13, 2016 WL 3462344 (June 8, 2016)
• Del. Op. Att'y Gen. 07-IB24, 2007 WL 4913657 (Dec. 27, 2007)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/11/09/20-ib28-11-9-2020-foia-opinion-letter-to-councilmember-samuel-guy-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/12/Attorney-General-Opinion-No.-20-IB28.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

KATHLEEN JENNINGS
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB28
November 9, 2020
VIA EMAIL
Councilmember Samuel L. Guy
Wilmington City Council
[email protected]
RE:

FOIA Petition Regarding the City of Wilmington

Dear Councilmember Guy:
We write in response to your correspondence alleging that the City of Wilmington ("City")
violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat
your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding
whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we
determine that the City did not violate FOIA as alleged.
BACKGROUND
This Petition pertains to the City's actions with respect to one of its councilmembers. A
councilmember was notified that he was barred from Council, due to residency requirements. In
July, the President of the City Council sent the councilmember a letter to advise him that his
position had been forfeited. On August 20, 2020, the City Council held a virtual public meeting
and the Petition alleges the Councilmember was denied the access codes to participate. In addition,
the Petition alleges that the City Council planned to do the same for the August 27, 2020 meeting.
According to the City, the Council granted the councilmember's request for a public hearing about
his qualifications to hold the position.
This Petition contains several arguments about how this process violated FOIA. First, you
argue the City Council President violated FOIA in July by conducting a legislative meeting "of

one person" without a quorum of the Council present.1 You argue the forfeiture of a
councilmember's office is an item of public business that must be addressed in a public meeting
of Council, citing to the City Charter. You contend another violation occurred on August 20, 2020
when City Council held a virtual public meeting, but the Mayor and Council President denied one
councilmember a copy of the login information necessary to participate, a copy of the meeting
agenda and notice, and his paycheck. Citing "hornbook law," you argue that FOIA requires the
topic of the councilmember's revocation of office be addressed in a Council meeting and the
information regarding the virtual meeting access be included on the agenda itself.2 You assert the
FOIA statute does not authorize a pre-emptive bar on a public body member's participation in the
public body's meetings. You argue this violation would be repeated at the then-upcoming meeting
scheduled for August 27, 2020. Thus, you contend "all actions taken regarding City Council
Member . . . and during the meetings he has been excluded from in violation of FOIA should be
void."3
The City's counsel replied to your Petition on October 19, 2020 ("Response"). The City
explains the Council President sent a letter notifying the councilmember of his disqualification to
serve and also granted him a public hearing on the matter. The City points out that the open
meetings do not apply to a public body with only one member. The City argues that the City
Council President is acting in her administrative role, the chief administrator for the City Council,
by serving this councilmember with the forfeiture notice. In this administrative role, the City
contends the Council President is a public body of one who is not required to satisfy open meeting
requirements. Moreover, the City argues that although you may disagree with the Council
President's position that the forfeiture was not discretionary under the City Charter, this issue is
not properly addressed by petitioning the Attorney General through the FOIA Petition process.
DISCUSSION
The Petition alleges that the City Council should have discussed the forfeiture of the
councilmember's seat at a public meeting. However, FOIA does not require public bodies to take
up certain items of public business at a public meeting.4 Thus, we do not find a violation on this
basis.
In addition, the Petition alleges that the Council President's transmission of the letter to the
councilmember violated FOIA. FOIA requires certain open meeting requirements be satisfied
when the quorum of a public body gathers to discuss or take action regarding public business or
1

Petition.

2

Id.

3

Id.

4

Del. Op. Att'y Gen. 17-IB09, 2017 WL 2345247, at 4 (Apr. 25, 2017) (quoting Del. Op.
Att'y Gen. 07-IB24, 2007 WL 4913657, at 3 (Dec. 27, 2007)).
2

by videoconferencing.5 The threshold inquiry is whether the communications involved a quorum
of the public body; a single person cannot be subject to the open meeting requirements.6
"Importantly, however, a complaining party must make a prima facie showing that a meeting may
have occurred, at which point the burden then shifts to the public body to prove that no FOIA
violation occurred."7 In this case, the Petition presents no evidence of a meeting. The only
evidence presented is that the City Council President sent a letter, which does not meet the
threshold for a prima facie showing that a meeting occurred, nor can the Council President acting
alone, whether properly or not, trigger open meeting requirements. As such, we cannot determine
on this factual record that a FOIA violation took place.
The gravamen of the Petition's remaining allegations is that the Mayor and City Council
President lacked authority to take certain actions - forfeit a councilmember's seat, pre-emptively
bar him from public meetings, or refuse to provide a paycheck or copies of certain materials. These
matters of municipal law, concerning the authority of the Council President or Mayor, are outside
the scope of the FOIA statute, and thus, we make no determination regarding these issues.8
CONCLUSION
For the reasons set forth above, we determine that the City has not violated FOIA as
alleged in the Petition.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

5

29 Del. C. §§ 10002(g), 10004.

6

29 Del. C. § 10004(h)(6) (exempting public bodies with one member from open meeting
requirements).
7

Del. Op. Att'y Gen. 17-IB08, 2017 WL 1317850, at 3 (Apr. 3, 2017); see also Del. Op.
Att'y Gen. 05-IB10, 2005 WL 1209240, at 2 (Apr. 11, 2005).
8

See, e.g., Del. Op. Att'y Gen. 16-IB13, 2016 WL 3462344, at 6 (Jun. 8, 2016); Del. Op.
Att'y Gen. 15-IB06, 2015 WL 5014135, at 10 (Aug. 19, 2015); Del. Op. Att'y Gen. 07-IB25, 2007
WL 4941957, at *2 (Dec. 27, 2007).
3

Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor
cc:

John D. Hawley, Assistant City Solicitor

4