Does Delaware FOIA require school boards to give a public comment period, and how much advance notice must they give if a meeting time is moved up by an hour?

Official title

22-IB30 08/24/2022 FOIA Opinion Letter to India Scott re: FOIA Complaint Concerning the Caesar Rodney School District Board of Education

Plain-English summary

India Scott filed a FOIA petition raising two issues about the Caesar Rodney School District Board of Education.

First, at the July 26, 2022 meeting, Scott had emailed the public-comment account in advance saying she wanted to comment virtually. When the Board called for comments, no requests were on file (a technical issue had blocked the email). Scott was not able to comment. The District apologized, noted future signup procedures, and described the technical glitch.

Second, at the April 12, 2022 meeting, the posted start time was 7:00 p.m. but the Board moved it up to 6:00 p.m. There was no electronic notice and nothing on the website. The District acknowledged that the rescheduling notice was posted only on the District office doors all day on the meeting date.

The AG split the result.

On the public-comment claim, the AG ruled that FOIA does not require a public body to hold a public comment period. The District's failure to enable Scott's virtual public comment was a technical glitch, not a FOIA violation. The AG noted that other laws may govern a public comment period, but FOIA itself does not.

On the rescheduled-meeting claim, the AG found a FOIA violation. A rescheduled or special meeting is "one to be held less than 7 days after the scheduling decision is made." For such a meeting, FOIA requires public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting," and the notice must explain why public notice could not be given seven days in advance. The District presented no evidence it met these requirements. Posting on the District office doors all day on the day of the meeting did not carry the Board's burden.

For remediation, the AG noted that the factual record did not specify what items were discussed before the properly noticed 7:00 p.m. start, and that the authority to invalidate a public body's action is reserved for the courts. The AG recommended that the Board "revisit in a future Board meeting the items of public business that it publicly discussed or took action upon prior to the properly-noticed time of 7:00 p.m."

What this means for you

For Delaware school boards and other public bodies that move up a meeting time. The opinion holds that a rescheduled or special meeting (one held less than seven days after the scheduling decision) requires public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting," plus an explanation of why notice could not be given seven days in advance. The Board did not show it met those requirements; posting on the office doors the day of the meeting did not carry its burden.

For Delaware school district solicitors. The opinion places the burden of proof on the public body to demonstrate compliance, and holds that a bare assertion that notice was posted on the office doors all day does not satisfy it. The body must be able to show both the 24-hour-minimum notice and the explanation for the short notice.

For parents, journalists, and advocates concerned about public comment. The opinion holds that FOIA does not require a public body to hold a public comment period. The AG noted that other laws may govern a public comment period, but FOIA itself is not the source of that right.

For Delaware school boards using virtual public comment. The opinion treats the District's failure to receive Scott's emailed comment request as a technical difficulty rather than a FOIA violation, because FOIA does not require a public comment period in the first place. The AG did not impose any FOIA obligation on how a body must run a comment sign-up.

Common questions

What counts as a "rescheduled meeting" in this opinion?
The opinion defines a rescheduled or special meeting as "one to be held less than 7 days after the scheduling decision is made." The defining feature is the timing of the scheduling decision, not just the change. For such a meeting, notice must go out as soon as reasonably possible and at least 24 hours ahead, with an explanation of why seven days' notice could not be given.

Why was "I posted on the office door all day" not enough?
The opinion holds the public body carries the burden of proof, and the Board's acknowledgment that it posted the time change on the District office doors the day of the meeting did not show it met the 24-hour notice and explanation requirements. The AG found the Board had "not presented any evidence that it met these requirements."

Does FOIA give me a right to speak at a school board meeting?
No. The opinion holds that FOIA does not require a public body to hold a public comment period. The AG noted that other laws may govern public comment, but a missed chance to comment is not, by itself, a FOIA violation.

What are the consequences of holding a meeting one hour earlier than noticed?
The opinion found a FOIA violation because citizens who wanted to attend the first hour may not have learned of the earlier start. The AG noted that the authority to invalidate a public body's action is reserved for the courts, and recommended that the Board revisit at a future meeting whatever it discussed or acted on before the noticed 7:00 p.m. start.

What remediation did the AG recommend?
The AG declined to recommend invalidation because the factual record did not specify what was discussed before 7:00 p.m. Instead, it recommended that the Board "revisit in a future Board meeting the items of public business that it publicly discussed or took action upon prior to the properly-noticed time of 7:00 p.m."

Was this a one-time mistake or a pattern at Caesar Rodney?
The opinion addresses one rescheduling. There is no allegation of a pattern. Future similar incidents would weigh more heavily in any subsequent petition.

Background and statutory framework

This opinion arises under the Delaware FOIA, 29 Del. C. §§ 10001-10007. The complaint was treated as a Petition for a determination under 29 Del. C. § 10005.

FOIA requires that meetings of public bodies, with limited exceptions, be open to the public, and that meeting notices and agendas be timely posted in advance. The public body has the burden of proof to demonstrate compliance; in certain circumstances a sworn affidavit may be required.

On the comment claim, the opinion states the rule plainly: "although other laws may govern a public comment period, FOIA does not require a public body to hold a public comment period." On the meeting claim, the opinion quotes the rescheduled/special-meeting standard, a meeting "to be held less than 7 days after the scheduling decision is made," and the notice requirement of "as soon as reasonably possible, but in any event no later than 24 hours before such meeting," with an explanation of why seven days' notice could not be given. The opinion does not pin these standards to a specific subsection in its reproduced text. The authority to invalidate a public body's action is reserved for the courts.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/08/24/22-ib30-08-24-2022-foia-opinion-letter-to-india-scott-re-foia-complaint-concerning-the-caesar-rodney-school-district-board-of-education/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/08/Attorney-General-Opinion-No.-22-IB30.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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. 22-IB30
August 24, 2022

VIA EMAIL
India Scott
[email protected]
[email protected]

RE: FOIA Petition Regarding the Caesar Rodney School District Board of Education

Dear Ms. Scott:
We write in response to your correspondence alleging that the Board of Education of the Caesar Rodney School District 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. For the reasons set forth below, we determine that the Board violated FOIA by failing to meet its burden to demonstrate that the rescheduled April 12, 2022 meeting was properly noticed. However, we find that the allegations about the public comment period at the July 26, 2022 meeting do not constitute a violation of FOIA.

BACKGROUND
The Petition alleges that violations occurred at the July 26, 2022 and April 12, 2022 Board meetings. At the July 26, 2022 Board meeting, although you emailed the account designated for public comments indicating you wanted to provide public comment virtually at the meeting, you assert that when the Board called for public comments during the meeting, you were not permitted to speak, because the Board was informed that no requests for public comment were submitted. District staff emailed you following the meeting to advise that a technical difficulty precluded them from seeing your email prior to the meeting; they apologized for the error, noting for future reference that sign in sheets were available at the door and you may sign up to give public comment at future meetings by contacting the District office before 3:00 p.m. on the meeting date.

At the April 12, 2022 meeting, you allege that the posted start time was 7:00 p.m, but the Board changed the time to 6:00 p.m. without sufficiently notifying the public of the change. There was no electronic notice, and nothing posted on the website. You state that when you raised this issue with the District, the staff asserted that the notice of the rescheduled meeting was posted all day on the District office doors.

On August 1, 2022, the Board, through its legal counsel, answered the Petition ("Response"). The District apologized for the inadvertent error that precluded your ability to offer public comment at the July 26, 2022 Board meeting and explained the circumstances resulting in the error that caused your email to be missed. However, as FOIA does not require a public comment period be held, the District argues that no FOIA violation occurred. With respect to the April 12, 2022 Board meeting, the District accepts your factual summary and reiterates that the meeting time changed by an hour and the notice of the revised time was posted on the District office doors but not the website.

DISCUSSION
To allow citizens the opportunity to observe the performance of its public officials and monitor these decisions about public business, FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public, and meeting notices and agendas be timely posted in advance of the meeting in accordance with the statute. A 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.

The Petition first alleges that the Board violated FOIA by not permitting you to speak during the public comment period of the July 26, 2022 meeting. Although other laws may govern a public comment period, FOIA does not require a public body to hold a public comment period. Thus, we find no violation of FOIA occurred with respect to the first allegation.

The Petition's second allegation is that the Board failed to provide proper notice of its rescheduled meeting on April 12, 2022. The Board acknowledges that the meeting notice with the time change was posted on its District office doors all day on the day of the meeting. A rescheduled or special meeting is defined as "one to be held less than 7 days after the scheduling decision is made." For a rescheduled meeting, FOIA requires that the Board give public notice "as soon as reasonably possible, but in any event no later than 24 hours before such meeting." In addition, the notice must explain why public notice of the rescheduled meeting could not be given seven days in advance. The Board has not presented any evidence that it met these requirements. Accordingly, we find that the Board violated FOIA by failing to demonstrate that it posted proper notice of its rescheduled meeting.

Having found that the Board violated FOIA, we must determine whether it is appropriate to recommend any remediation. The authority to invalidate a public body's action or impose other relief is reserved for the courts, and the courts have emphasized 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 this case, the Board did not give proper notice of its earlier start time, meaning that citizens wishing to attend the first hour of the meeting may not have received notice of the rescheduled meeting. This factual record does not specifically delineate the issues discussed prior to the properly-noticed 7:00 p.m. start time. While we do not find this record sufficient to determine that a court is likely to invalidate the Board's action on any items, we recommend that the Board revisit in a future Board meeting the items of public business that it publicly discussed or took action upon prior to the properly-noticed time of 7:00 p.m.

CONCLUSION
For the foregoing reasons, we conclude that the Board violated FOIA by failing to meet its burden to demonstrate that the rescheduled April 12, 2022 meeting was properly noticed. However, we find that the allegations about the public comment period at the July 26, 2022 meeting do not constitute a violation of FOIA.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
Deputy State Solicitor

cc: James H. McMackin, III, Attorney to Caesar Rodney School District