Delaware Attorney General Opinions
Free plain-English summaries of attorney general opinions issued in Delaware, with full citations and the original source on every page.
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Can a Delaware public university charge employee labor costs for filling a records request?
No, the AG found. Delaware State University violated FOIA by including two senior employees' salaries in a $5,500 estimate to copy records, because a public body can only charge the actual cost of rep…
Can Delaware make a water and sewer authority follow open-records law even though it's funded only by user fees?
Yes, the AG found. After a new law (Senate Bill 36) added water and sewer authorities to FOIA's definition of "public body," the Camden Wyoming Sewer & Water Authority had to disclose employee and con…
Can a Delaware school district withhold a lawsuit settlement that a court has ordered sealed?
No, the AG found. Because the settlement agreements in both lawsuits against Brandywine School District had been filed under seal, one fully sealed by a Delaware Superior Court order and the other fil…
Did a Delaware county council violate open-meetings law by hiring a new administrator through closed-door committee sessions?
Partly, the AG found. Sussex County Council improperly redacted executive-session minutes without explanation and held one improper executive session, but later public meetings fixed that; its search …
Can a Delaware state employee's building access badge records be kept secret from a FOIA requester?
No, the AG found. A Department of Labor employee's building access badge records (dates and times of entry) were exempt from FOIA under the security exception, which covers any record that "could" end…
Can a Delaware agency's slow FOIA response mean records are lost to routine email purging?
Partly, the AG found. DelDOT violated FOIA by giving a reporter a summary instead of the actual records, by not searching thoroughly enough at first, and especially by waiting too long to ask the stat…
Is a Delaware sewer and water authority automatically a 'public body' subject to the open records law?
No, under the law as it stood in 2011. The AG found the Camden-Wyoming Sewer and Water Authority was not a 'public body' under FOIA because, even though it was created through the state's authority-cr…
Are a mayor's and city council members' personal emails about city business public records under Delaware's FOIA?
No, the AG found, on a question of first impression in Delaware: emails between Newark's mayor and council members sent and received on personal computers through private accounts were not public reco…
Can a city council reveal job candidates' names and discuss the hiring process for a new city attorney in a closed personnel session?
No, under the law as it stood in 2011. The AG found that after New Castle's city council properly handled a personnel matter in executive session, it violated FOIA by using that same closed session to…
Can a Delaware town committee hold private meetings to pick a new police chief and keep the applications secret?
Mixed result, the AG found. Smyrna's police-chief hiring subcommittee had violated FOIA's open-meetings rules (no notice, no minutes, no proper executive session), but the applications themselves stay…
Did a Delaware high school athletic association violate open-meetings law by giving only one day's notice of a special board meeting?
No, the AG found. DIAA's posted notice listed the wrong date, but state records confirmed it actually went up on the website 24 hours before the meeting as FOIA requires, and DIAA's boilerplate explan…
Can Delaware's public records law reach University of Delaware research records if state money didn't pay for the project itself?
No, the AG found. University of Delaware records are public only if they relate to the expenditure of public funds, and because no state or local funds paid for the Lewes wind turbine project itself, …
Can a journalist get a sheriff's DUI prosecution file from Delaware's Attorney General after he's already pleaded guilty and been sentenced?
No, the AG found. Delaware's public records law draws a line between a person's own 'criminal record,' which anyone can get a copy of, and a prosecutor's 'criminal file,' which stays closed to the pub…
Does a Delaware zoning board's meeting agenda have to name a property by its 911 street address instead of just its rural road number?
No, under the law as it stood in 2010. The AG found Sussex County's Board of Adjustment could describe properties on its agenda by rural road number rather than 911 street name, since the agenda's pur…
Does Delaware's open meetings law require a town to explain in its minutes why it went into a closed executive session?
Not technically, the AG found. FOIA only requires that a vote to hold an executive session be recorded in the minutes and that a permissible reason appear on the meeting agenda, not that the reason it…
Can a school district withhold a special-education lawsuit settlement from a reporter by calling it a confidential student record?
Not automatically, the AG found. Because federal student-privacy law lets parents consent to release their child's education records, the district first had to ask the parents for written consent; onl…
Can a Delaware state agency redact the names of people who wrote in or signed a petition about a road project?
No, the AG found. Because commenting on a road study was voluntary and served the public's interest in overseeing a government decision, rather than the agency's own information needs, the minimal pri…
Does Delaware's manufactured-home tenant protection law cover a 'modular' home community, not just traditional mobile homes?
Yes, the AG concluded. Even though the homes in a Kent County 55-plus community are built off a permanent steel chassis, making them 'modular' rather than HUD-defined 'manufactured' homes, Delaware's …
If a union thinks a city is withholding a wage study needed for contract talks, does Delaware's AG decide that dispute or does someone else?
The state's labor board (PERB) does, the AG concluded, deferring to PERB's authority over collective bargaining rather than deciding for itself whether a wage-study report was exempt from FOIA as a co…
Does filing an unfair labor practice complaint with Delaware's labor board count as 'litigation' that lets a public university withhold records under FOIA?
Not clearly enough to win, the AG found. A PERB proceeding has some litigation-like features but no formal right to discovery, and when a public body's claim to the pending-litigation exemption is dou…
Can a Delaware town charge nearly $2,000 to retrieve a mayor's town-related emails from his home computer under a FOIA request?
Yes, the AG found, since the town had no employee capable of doing that kind of computer forensics work itself. Hiring an outside contractor to clone the hard drive, recover deleted emails, and sort o…
Does a school board's informal 'agenda prep' meeting before its regular meeting count as a meeting under Delaware's open-meetings law?
Yes, the AG found. A school board's admission that it skipped posting an agenda for one meeting and never kept minutes of its informal pre-meeting agenda sessions were both FOIA violations, even thoug…
How specific does a Delaware public body's notice for an executive session have to be about personnel matters?
Less specific than a regular meeting agenda, the AG found. A town's notice reading 'Executive Session to Discuss Contract and Personnel Issues' was good enough even though it didn't name the police ch…
Can a Delaware town council use a closed executive session to actually decide a contested land-use application?
No, the AG found. The council could properly go into executive session just long enough to get legal advice on the litigation risks of approving or denying two subdivision applications, but once it ke…
Can a city refuse to hand over water-dispute records just because its lawyer believes the requester will eventually sue?
No, the AG found. A city attorney's subjective impression from a phone conversation, that a condo association's lawyer was hinting at a future lawsuit, wasn't objective enough evidence of a 'realistic…
Can a Delaware town manager call council members individually to get their input on a grant decision without violating open meetings law?
Yes, the AG found, as long as the manager, not the council, is actually deciding and isn't asking members to vote or reach a consensus with each other. The same opinion also upheld a closed session to…
Can I get Delaware town ethics-commission records about a complaint filed against me, if only I would see them?
No, the AG found. The town's own code of conduct made all ethics commission proceedings confidential, which FOIA's statutory-confidentiality exemption respects, and FOIA doesn't allow a town to releas…
Can a Delaware town keep a neighbor's complaint letter confidential even after the mayor mentioned parts of it in public?
Yes, the AG found. The letter qualified as a law-enforcement investigatory file that could stay confidential to protect the complainant's identity, and neither the mayor's partial public comments abou…
Can a Delaware county require you to pay a records-retrieval fee before it will let you review emails you requested under FOIA?
Yes, the AG found, when the county has a written policy authorizing the charge. Sussex County could require the requester to pay $227.12 in advance for the eight hours of staff time it took to pull em…
If a Delaware county already retrieved a batch of emails for one FOIA requester, can it charge a second requester the full retrieval cost again?
No, not unless the county actually has to redo the work, the AG found. Sussex County could reasonably charge $227 for the eight hours of staff time it took to pull emails from its computer system, but…
Can a Delaware school board have police remove someone who won't stop yelling and disrupting a meeting?
Yes, the AG found. FOIA lets a public body remove anyone who is willfully and seriously disruptive of a meeting, and a man who refused to sit down or stop yelling for about six minutes met that standa…
Are firefighter training records at Delaware's State Fire School public records under FOIA?
Yes, the AG found. Even though a firefighter's training record is kept in his company personnel file, nothing in a simple list of courses and hours completed could count as an invasion of personal pri…
Can a Delaware county charge a flat per-record fee for downloading a huge electronic database of property records?
No, under the law as it stood in 2008. The AG found Sussex County violated FOIA by charging an arbitrary per-record fee (working out to $3,000 for about 4 million electronic property records) instead …
Can a Delaware water authority keep its auditor's management letter secret by claiming it belongs to the accounting firm, not the authority?
No, under the law as it stood in 2008. The AG found the Camden-Wyoming Sewer and Water Authority violated FOIA by withholding its outside auditor's management comment letter, ruling the letter was a p…
Can a Delaware citizen force a county to reveal who anonymously forwarded a public official's email to a staffer?
No, under the law as it stood in 2008. The AG found New Castle County could withhold records identifying whoever forwarded a councilman's public email to the Chief of Staff, because the requesting cou…
Can a Delaware city committee meet privately to interview vendors competing for a public contract?
Yes, on the substance, the AG found: interviewing and ranking competing engineering firms' confidential proposals qualified for FOIA's trade-secrets exemption. But the city still violated FOIA because…
Does a planning commission's meeting notice have to specifically mention that it might waive a code requirement?
No, under the law as it stood in 2008. The AG found that an agenda listing a 'Request for Reconsideration' of a denied subdivision application gave adequate notice that the Rehoboth Beach Planning Com…
Can a city fix a vague meeting agenda by fully re-debating the issue in public at the next meeting?
Under the law as it stood in 2008, yes, according to the AG. Rehoboth Beach's 'committee structure' and term-limits agenda items were both technical FOIA violations, but a later full public debate and…
Does a Delaware town's advisory commission have to hold open meetings before its bylaws are formally adopted?
Yes, under the law as it stood in 2008. The AG found the Middletown Action Network became a FOIA public body the day the ordinance creating it took effect, not months later when it formally adopted by…
If a school board adds a bid decision to its meeting agenda late, does it have to explain exactly why in detail?
No, the AG found. FOIA only requires a brief reason for adding an item to an agenda less than seven days before a meeting, not a detailed factual justification, and a Delaware school district's one-se…
Can you use Delaware's public records law to force a town to explain how it calculated an employee bonus?
No, the AG found. FOIA only requires a town to hand over records that already exist; it doesn't require the town to create an explanation, answer questions about its methodology, or defend the accurac…
Did a Delaware public university's board violate open meetings law by holding an entire board meeting over the phone?
Mostly no, the AG found. Delaware State University's board meeting was open as FOIA required because the public could still attend in person and listen over a speakerphone in the board room, even thou…
Can county officials avoid Delaware's open meetings law by holding a string of one-on-one briefings instead of one group meeting?
No, the AG found. Even though no single briefing included a quorum of Kent County's Levy Court, a coordinated series of five private sessions designed to build a majority consensus on a Comprehensive …
Can a Delaware town council meet privately with a developer to renegotiate impact fee payment terms without telling the public first?
No, under the law as it stood in 2008. The AG found Cheswold's town council violated FOIA three ways when it privately met with a developer's representatives to renegotiate impact fee payment terms: i…
Does Delaware's open meetings law give the public a right to speak at a school board meeting?
No, the AG found. FOIA's open meeting provisions don't guarantee anyone a right to address a public body at all, so a school board did not violate the law by letting an aunt speak on other topics but …
Does a Delaware town have to spell out a hot-button issue like building height in its meeting agenda, or post its draft plans online?
Under the law as it stood in 2007, yes for the town, according to the AG. Posting notice at Town Hall satisfied FOIA even though the town skipped local newspapers, general agenda items like 'RAC activ…
If two members of a five-person Delaware town council decide something together without a public meeting, does that violate the open meetings law?
Not automatically, the AG found. Because only four of the town's five council seats were filled and a quorum required three, a decision made by just two council members (the president and the treasure…
Can a Delaware city retroactively justify withholding FOIA records based on things said after it already refused the request?
No, the AG found. Delaware's potential litigation exemption is judged by what a city objectively knew when it made its withholding decision, so statements and news stories from weeks after the City of…
Does a Delaware town have to name a specific person in the meeting agenda before voting to remove them from a volunteer board?
No, under the law as it stood in 2007. The AG found that listing 'Executive Session if needed to discuss personnel matters' on the agenda gave adequate notice before the Cheswold Town Council privatel…
Does a Delaware university's board of trustees violate open meetings law just by attending a national conference together?
No, under the law as it stood in 2007. The AG found that thirteen of Delaware State University's seventeen trustees attending a national trusteeship conference in Phoenix did not create a FOIA 'meetin…
Can a Delaware elections committee hold a voter-eligibility meeting on just three days' notice right before an election?
Under the law as it stood in 2007, yes, according to the AG. The Elections Committee had a compelling need to inform voters before a February 24, 2007 town election, though it should have explained in…
Can a Delaware town satisfy FOIA's meeting-notice rule by posting at the post office instead of its own regular meeting hall?
No, under the law as it stood in 2007. The AG found the Town of Bethel had to post meeting notices at its own regular meeting place (the Community Center), not just at the post office and a local mark…
Can the public get payroll records for Delaware State University employees under the state's FOIA law?
Only if the employee is paid from public funds. The AG found two Delaware State University employees paid entirely from the university's private, non-public restricted funds were outside FOIA, so thei…
Could a Delaware town call a last-minute 'special' meeting instead of an 'emergency' meeting to skip FOIA's notice rules before an election?
Partly. The AG found the Town of Bethel's two-day notice was valid as a special meeting because there was a genuine compelling need to appoint election officials before an upcoming vote, but the notic…
Can a small Delaware town charge thousands of dollars in staff time before it will hand over public records?
No, the AG found. Because the Town of Bridgeville had no written FOIA fee schedule, it could only charge the actual cost of photocopying, not the $11,383 in estimated staff labor it demanded up front …
If a Delaware board's own bylaws set a lower quorum than what a later change in the enabling statute requires, which one controls?
The statute does, according to this opinion. When the legislature increased the size of Delaware State University's Board of Trustees without updating the specific quorum statute, the AG found the quo…
Can a Delaware town change how it calculates property taxes under a vague 'Property Tax Assessment' agenda item?
No, under the law as it stood in 2007. The AG found Cheswold's agenda item 'Property Tax Assessment' did not give residents adequate notice that the council would switch from market-value assessments …
Does Delaware's public records law (FOIA) apply to the state courts?
No, according to this opinion. Delaware's FOIA defines a 'public body' as an executive or legislative entity, and the AG found the judiciary, exercising its independent constitutional function of reso…
Can Delaware town council members avoid open meeting rules by meeting with a vendor in small groups below a quorum?
No, according to this opinion. When every council member ends up hearing the same pitch across a series of small private meetings with two competing contractors, that counts as a 'constructive quorum'…
Does Delaware's open meetings law apply to the University of Delaware Board of Trustees' Executive Committee?
No, under the law as it stood in 2006. The AG found that FOIA's open meeting law only covers the full University of Delaware Board of Trustees, not its Executive Committee, so the Committee's private …
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Attorney general opinions in Delaware are written by the Delaware Attorney General's office in response to questions from state agencies, legislators, and prosecutors. They are not binding like court decisions, but courts and agencies treat them as persuasive guidance on how state law applies. Every opinion above has a plain-English question and short answer, plus a link to the full original text.