If a Delaware village holds a regular meeting and a resident says the bulletin-board notice was missing on a specific date, but the village's secretary swears she posted it earlier, who wins?

Official title

24-IB15 04/22/2024 FOIA Opinion Letter to Carol DiGiovanni re: FOIA Complaint Concerning the Village of Arden

Plain-English summary

The Village of Arden Charter requires the Town Assembly to hold four regular meetings a year and to mail meeting notice to all residents. FOIA also requires "conspicuous posting" of the notice at the principal office of the public body, or at the place where meetings are regularly held (29 Del. C. § 10004(e)(5)).

Carol DiGiovanni filed a FOIA petition alleging that as of March 21, 2024, no meeting notice for the upcoming March 25, 2024 Town Assembly meeting was posted on the Gild Hall bulletin board. She had received the mailed notice and the website posting; the issue was the physical bulletin-board posting. She submitted a photograph from March 21 showing the empty board.

The Village's counsel responded with two affidavits. The Town Assembly Secretary attested that she posted the meeting notice on the Gild Hall bulletin board on March 11, 2024, and again on March 22, 2024, after being alerted via the petition that the notice was missing. She also stated under oath that she posted the meeting notice on the website on March 11, 2024 and mailed notice to all residents on March 10, 2024. A second affidavit from an Arden resident attested to witnessing the Secretary post the notice on the bulletin board on March 11.

The AG accepted the affidavits. Either the notice was posted and subsequently removed by someone else (a wind, a passerby, weathering), or DiGiovanni's photograph was taken in a moment when the posting was momentarily missing for unrelated reasons. The Secretary's prompt reposting on March 22 (after being alerted) addressed any ambiguity. On the factual record, the AG found no violation.

What this means for you

For Delaware municipal clerks and secretaries. The opinion holds that the public body carries the burden of proving compliance and that a sworn affidavit may be required to meet it. Here the Secretary's sworn statement that she posted the notice on the bulletin board on March 11 and reposted it after being alerted, corroborated by a resident witness, was enough to establish compliance on the factual record.

For Delaware municipal residents who notice missing postings. The opinion holds that a photograph showing the board empty on one date did not, against the Village's sworn statements that the notice was posted on March 11 and reposted on March 22, establish a violation. On that record the office found no FOIA violation.

For Arden. The opinion found no violation of the conspicuous-posting requirement in 29 Del. C. § 10004(e)(5) for the March 25, 2024 Town Assembly meeting, crediting the two affidavits the Village submitted.

Common questions

What's "conspicuous posting" under FOIA?
29 Del. C. § 10004(e)(5) requires meeting notice to be "conspicuously posted at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held." The standard is that the notice be visible to a reasonable person attempting to locate it. A bulletin board at the regular meeting location is a classic conspicuous posting venue.

Why didn't DiGiovanni's photograph win?
The opinion credits the Village's sworn statements that the Secretary posted the notice on the bulletin board on March 11 and, when alerted the notice was missing, promptly reposted it. The petitioner's March 21 photograph showed the board empty on that date, but on this factual record the office did not find a violation.

Did the petitioner act in bad faith?
The opinion makes no such finding. It treats the petition as a factual dispute about whether the notice was posted and resolves it on the affidavits.

Background and statutory framework

29 Del. C. § 10004(e)(5) requires conspicuous posting of meeting notices.

The opinion states the public body has the burden of proof to demonstrate compliance with FOIA and that in certain circumstances a sworn affidavit may be required to meet that burden.

The Village Charter (as described in the opinion) requires the Town Assembly to hold four regular meetings a year and to mail notice to all residents; FOIA separately requires conspicuous physical posting. The opinion finds the Village established the posting on the factual record.

Citations

• 29 Del. C. § 10004(e)(5): conspicuous posting
• 29 Del. C. § 10005: petition; burden of proof
• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/04/22/24-ib15-04-22-2024-foia-opinion-letter-to-carol-digiovanni-re-foia-complaint-concerning-the-village-of-arden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/04/Attorney-General-Opinion-No.-24-IB15.pdf

Original opinion text

KATHLEEN JENNINGS

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB15
April 22, 2024

VIA EMAIL
Carol DiGiovanni
[email protected]

RE: FOIA Petition Regarding the Village of Arden

Dear Ms. DiGiovanni:
We write in response to your correspondence alleging that the Village of Arden 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 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we find that the Village did not violate FOIA by failing to post notice of its March 25, 2024 meeting.

BACKGROUND
The Village of Arden is a small municipality with a governing body, known as the Town Assembly, that consists of all residents of the Village. The Village Charter requires the Town Assembly to hold four regular meetings a year and to mail the meeting notice to all residents. You filed this Petition alleging that the Village failed to properly post notice of the March 25, 2024 Town Assembly meeting as required by FOIA. You state that the Town Assembly meetings are held at the Gild Hall or another appropriate location. For the March 25, 2024 Town Assembly meeting, you assert that you received the mailed meeting notice, and the notice was posted to the website, but when you visited the bulletin board at Gild Hall, no meeting notice was posted, which constitutes a violation of FOIA. You submitted a photograph that you took on March 21, 2024 as proof of your claim.

On April 2, 2024, the Village's counsel replied to the Petition ("Response") and attached two affidavits. In the first affidavit, the Secretary of the Town Assembly attests that she posted the notice of this meeting on the Gild Hall bulletin board on March 11, 2024, and again on March 22, 2024, after being alerted through this Petition that the notice was missing. The Secretary also states under oath that she posted the meeting notice on the website on March 11, 2024 and mailed notice of the meeting to all residents on March 10, 2024. In the second affidavit, an Arden resident attests to witnessing the Village Secretary post the notice of the meeting on the Gild Hall bulletin board on March 11, 2024.

DISCUSSION
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. In this case, the Petition claims that the Town Assembly violated FOIA by failing to post notice of its March 25, 2024 Town Assembly meeting at Gild Hall. FOIA requires the "conspicuous posting of [the meeting] notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held." The Village presented sworn statements that the Village Secretary did, in fact, post the meeting notice on the Gild Hall bulletin board on March 11, 2024, and when alerted that the notice was missing, the Village Secretary promptly reposted notice of the meeting. On this factual record, we do not find a violation of FOIA.

CONCLUSION
Based on the foregoing, we conclude that the Village did not violate FOIA by failing to post the notice of its March 25, 2024 Town Assembly meeting as required by 29 Del. C. § 10004(e)(5).

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

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

cc: Edward B. Rosenthal, Attorney for the Town Assembly, Village of Arden