If a Delaware town's meeting agenda lists a 'Second Reading: Resolution' on a property tax rate, but the council actually does the first reading of an ordinance instead, is that a FOIA violation?

Plain-English summary

The Town of Blades's Council meeting on November 10, 2025 listed an agenda item: "Second Reading: Resolution 2025.10.27.0001 Real Estate Property Tax Rate." When the meeting started, the Mayor explained the Council had changed the resolution on the agenda to Ordinance No. 439, which was a first reading rather than a second reading. The next month, December 2, 2025, the Council met and listed "Second Reading of Ordinance 439: Real Estate Property Tax Rate Change Ordinance" on the agenda.

John Reiss filed a § 10005 petition arguing that the November 10 first reading of Ordinance 439 was not properly noticed because the agenda only listed a "second reading of a resolution," not a "first reading of an ordinance."

The AG found no violation. Two parts of the analysis:

1. FOIA does not regulate the procedural form of municipal legislation. Whether the Town handles the property tax rate as a resolution or an ordinance, and whether it requires a first and second reading, is a municipal practice (under the Town Charter and municipal procedure rules), not a FOIA question. FOIA does not mandate a process for noticing first or second readings of proposed ordinances. The AG's authority under § 10005 is limited to FOIA violations, and procedural form is outside that scope.

2. The agenda's substantive content was sufficient under § 10004. FOIA requires meeting agendas to include a "general statement of the major issues" expected to be discussed, in "plain and comprehensible language." The agenda item on the November 10 agenda described the substantive issue: the real estate property tax rate. That description was enough to "alert members of the public with an intense interest in" the matter that the property tax rate would be taken up. Whether the vehicle was a resolution or an ordinance is a procedural detail; the substantive subject was identified.

So even on the FOIA-cognizable claim (agenda specificity), the Town's agenda was sufficient.

What this means for you

If you are a Delaware municipal clerk drafting agendas

The opinion holds that § 10004 requires a "general statement of the major issues" in "plain and comprehensible language," and that the agenda satisfies FOIA when it identifies the substantive subject (here, the real estate property tax rate). It holds that the procedural form (resolution versus ordinance, first versus second reading) is a municipal practice outside FOIA's scope, so substituting one form for another at the meeting did not violate the agenda requirement where the substantive subject was the same.

If you are a town councilmember changing the form of legislation at a meeting

The opinion holds that FOIA does not regulate the form of legislative action; the Town's substitution of Ordinance No. 439 for the noticed resolution on the same property-tax subject was not a FOIA violation. The opinion addresses only substantive agenda notice, not whether a different substantive topic could be introduced.

If you are a citizen monitoring municipal meetings

The opinion holds that the agenda's substantive description controls: because the November 10 agenda identified the "Real Estate Property Tax Rate," it alerted members of the public with an intense interest that the subject would be taken up, regardless of the resolution-versus-ordinance label.

If you want to challenge an agenda's specificity

The opinion holds that a claim the agenda "did not say first reading of an ordinance" is not a FOIA violation where the substantive issue (the tax rate) was identified. It distinguishes substantive notice (FOIA-cognizable) from procedural form (outside § 10005), and the AG's authority is limited to FOIA violations.

If you are a municipal attorney advising on agenda drafting

The opinion holds that the agenda's substantive identification of the issue is what satisfies § 10004, and that the AG's authority under § 10005 is limited to FOIA. Whether the Town must use a first and second reading for an ordinance is governed by the Town Charter or Delaware municipal-procedure law, which the opinion treats as outside its scope.

Background and statutory framework

29 Del. C. § 10001 declares the policy: FOIA exists to ensure citizens can observe public officials and monitor decisions on public policy.

29 Del. C. § 10004 sets the open-meetings requirements, including agenda content. The agenda must include a "general statement of the major issues" the public body expects to discuss, in "plain and comprehensible language." The standard is whether the agenda item would "alert members of the public with an intense interest in" the matter that the subject will be taken up.

The agenda is not a precise legislative tracking document. It is a notice tool. As long as the public is on notice that a particular subject (here, real estate property tax rates) is going to be addressed, the agenda has done its job. Whether the body addresses the subject through a resolution, an ordinance first reading, an ordinance second reading, or some combination is a procedural decision the agenda doesn't have to anticipate exactly.

29 Del. C. § 10005 is the petition process. Section 10005(c) puts the burden of proof on the public body. The Judicial Watch sworn-affidavit standard applies, but the AG's analysis here turned on the legal question of agenda sufficiency.

Common questions

What does FOIA require an agenda to say?

A "general statement of the major issues" expected to be discussed, in "plain and comprehensible language." Agenda items should be specific enough that someone with intense interest in the topic would recognize that the subject is going to be discussed.

Can the Council switch from a resolution to an ordinance at the meeting?

Yes. FOIA does not regulate the form of legislative action. The Town Charter or Delaware municipal-government statutes may require a first and second reading for an ordinance, but those rules are not FOIA-cognizable.

What if the agenda lists "Topic A" but the Council ends up discussing "Topic B"?

That could be a FOIA violation. The agenda must give substantive notice of the actual subjects discussed. Substituting a different procedural form is fine; substituting a different substantive subject is not.

What is the difference between a resolution and an ordinance?

In most Delaware municipalities, an ordinance is a more formal piece of local legislation, often requiring two readings, with codified status. A resolution is typically a less formal expression of legislative intent that can pass with a single vote. The procedural details vary by Town Charter. The AG opinion here did not parse the distinction because FOIA does not regulate it.

Why did the Mayor explain the change at the meeting itself?

That is a good practice from a transparency standpoint. The change in procedural vehicle was disclosed, and the substantive subject was the same as listed on the agenda. The opinion does not criticize the practice.

What kind of agenda item would actually violate FOIA?

A vague agenda that does not identify the substantive issue. Examples that have been found insufficient in prior opinions: "Old Business," "New Business," "Discussion," and similar generic placeholders that do not flag specific topics. The Town of Blades's "Real Estate Property Tax Rate" was specific enough.

Can I challenge the procedure-versus-form change in another forum?

Possibly. If you believe the Town did not follow its Charter or the Delaware Code provisions on municipal procedure, you could pursue that in a separate proceeding. The AG's FOIA opinion does not foreclose that. But under § 10005, the AG cannot opine on it.

Did the Council pass the property tax change?

The opinion implies the December 2, 2025 meeting handled the second reading of Ordinance 439. The merits of the tax rate change are not addressed by the AG opinion.

Citations

• Statutes: 29 Del. C. § 10001 (policy); § 10004 (open meetings; agenda requirement); § 10005 (petition process); § 10005(c) (burden of proof).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/12/16/25-ib63-12-16-2025-foia-opinion-letter-to-john-reiss-re-town-of-blades/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB63.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL
DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB63
December 16, 2025

VIA EMAIL
John Reiss
[email protected]

RE: FOIA Petition Regarding the Town of Blades

Dear Mr. Reiss:
We write in response to your correspondence dated November 24, 2025, alleging that the Town of Blades 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 of whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Town did not violate FOIA by failing to convey in its agenda that a first reading of Ordinance No. 439 regarding the real estate property tax rate was planned for the Town Council's November 10, 2025 meeting.

BACKGROUND
The Town Council held a meeting on November 10, 2025 with an agenda item named "Second Reading: Resolution 2025.10.27.0001 Real Estate Property Tax Rate." At the December 2, 2025 Council meeting, the agenda included the item: "Second Reading of Ordinance 439: Real Estate Property Tax Rate Change Ordinance Adopting The Change Of Real Estate Property Tax Rate." The Petition alleges that at the November meeting, the Mayor advised the Council had changed the resolution on the agenda to Ordinance No. 439. You allege that the Town violated FOIA, because the first reading of Ordinance No. 439 was not posted on the November meeting agenda.

DISCUSSION
FOIA is intended to ensure that public business is done in the open, "so that . . . citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy." FOIA requires a meeting of a public body to be open to the public, except in limited circumstances. In any action brought under Section 10005, the public body has the burden of proof to demonstrate compliance with FOIA.

This Office's authority is limited to determining alleged violations of the FOIA statute. The Petition claims that the Town Council violated FOIA by failing to provide notice that a first reading of Ordinance No. 439 regarding the real estate property tax would occur at the meeting. However, FOIA does not mandate a process for noticing first or second readings of proposed ordinances; this municipal practice falls outside the scope of this Opinion.

Instead, FOIA requires sufficient notice be provided in any meeting agenda for the items intended to be discussed. An agenda for a public meeting must include a "general statement of the major issues" which a public body expects to discuss and must be worded in "plain and comprehensible language." "In order that the purpose of the agenda requirement be served, [a meeting item] should, at least, 'alert members of the public with an intense interest in' the matter that the subject will be taken up by the [public body]." While the public body must provide [sufficient notice as articulated in the agenda].

CONCLUSION
We determine that the Town did not violate FOIA by failing to convey in its agenda that a first reading of Ordinance No. 439 regarding the real estate property tax rate was planned for the Town Council's November 10, 2025 meeting.