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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If a Delaware public body holds a meeting without giving the required public notice, can it fix the problem just by approving the minutes later?
Not usually, according to this opinion. Merely approving the minutes of an earlier unnoticed meeting is a perfunctory, ministerial act that doesn't cure a FOIA violation; the public body has to give t…
Can a Delaware citizen force a public authority to calculate exactly how much it spent on a specific lawsuit if that figure was never tracked separately?
No, according to this opinion. Because the authority's attorney billed for the lawsuit together with other legal work in combined quarterly invoices, the AG found FOIA doesn't require breaking out a s…
If a Delaware agency's email system automatically deletes messages after 90 days, does that violate FOIA when a request comes in for older emails?
No, according to this opinion. Once the agency's IT staff confirmed the emails had already been overwritten by a routine 90-day backup cycle before the request was made, the AG found there was nothing…
Can a Delaware county council discuss which outside consulting firm to hire in a private executive session?
No, according to this opinion. FOIA's executive-session exemptions for job applicants and personnel only protect individuals seeking or holding public employment, not independent contractors and vendo…
Can a Delaware public housing authority refuse a reporter's records request by citing a lawsuit filed by someone else?
No, according to this opinion. FOIA's pending-litigation exemption is meant to stop a party to a lawsuit from using a records request as a shortcut around court discovery rules; it doesn't let an agen…
Can a Delaware school board avoid open meetings law by briefing members in two separate small private sessions on the same topic?
No, under the law as it stood in 2006. The AG found that splitting a briefing on layoffs and a tax vote into two back-to-back private sessions, reaching five of the Christina School Board's seven memb…
Can a Delaware town council appoint a vice mayor at a special meeting without listing it on the agenda?
No, under the law as it stood in 2006. The AG found Smyrna's agenda item 'Other Council Business' did not adequately notify the public that the council would appoint a vice mayor, and ordered the town…
Can a Delaware county subcommittee limit a public meeting to invited officials and refuse to hear from the general public?
Yes, according to this opinion. FOIA doesn't require a public body to open the floor for public comment at all, and because this subcommittee never did so, limiting the discussion to invited officials…
If a Delaware state agency keeps its records in an electronic database, does FOIA require giving requesters the data itself, not just paper printouts?
Yes, according to this opinion. Once a public body maintains an electronic database, even one run by a private contractor, FOIA requires giving requesters the electronic data itself, not just paper co…
Can Delaware town council members each call the town manager separately about the same issue without triggering open meetings law?
Under the law as it stood in 2006, yes, according to the AG. FOIA's open meeting rule only applies once a quorum of the body is involved, and here at most three of the town's seven council members had…
Can a Delaware school board discuss superintendent candidates, salary, and a search firm's advice behind closed doors?
Under the law as it stood in 2006, yes for the personnel and search-firm portions, according to the AG. But the board also strayed into procedural matters (search timeline, elections, website notices)…
Can a Delaware town keep secret which employees received interest-free loans from taxpayer funds?
No, according to this opinion. The AG found that interest-free employee loans are a form of compensation, and just as public salaries are public information, so is the identity of employees who borrow…
Does responding to a public records request in nine days, or telling someone information by phone instead of in writing, violate Delaware's FOIA?
No, under the law as it stood in 2006. The AG found the Town of Camden did not violate FOIA in any of six specific incidents a citizens' group complained about, including records that reportedly went …
Can a Delaware city council vote on hiring a job candidate while still in executive session?
No, according to this opinion. FOIA lets a public body discuss a job applicant's qualifications privately, but any actual vote, even an informal consensus vote, must happen in open session; the AG als…
Can Delaware public employees' attendance records and time sheets be withheld from the public as private personnel information?
No, according to this opinion. Basic attendance records, sign-out sheets, and time sheets showing when a public employee was or wasn't on the job aren't protected by FOIA's personnel-privacy exemption…
If a Delaware public agency says the records a FOIA request asked for don't exist, does that end the complaint?
Yes, according to this opinion. Once a school district's attorney verified that no receipts, correspondence, or emails existed for a specific donation because the board had actually declined to accept…
Can a Delaware town require someone to explain why they want public records, or prove Delaware residency, before handing them over?
No to both, under the law as it stood in 2006. The AG found the Town of Townsend's public records form violated FOIA by requiring requesters to state their reason for requesting records and to prove D…
Can a Delaware school board add new items to a public meeting agenda just days before the meeting?
Yes, under limited circumstances, according to this opinion. FOIA lets a public body amend an agenda up to six hours before a meeting if it explains the delay, and the AG found a school district prope…
If a city council's agenda only lists a general comment period, can a council member use it to trigger real debate and action on a land-use project?
No, under the law as it stood in 2006. The AG found Newark City Council violated FOIA when a councilman's comment during the 'Council Members' portion of a meeting's agenda turned into an extended, su…
Is it an illegal secret meeting under Delaware's FOIA if just two of seven town council members show up at a private citizens' group meeting?
No, under the law as it stood in 2006. The AG found that two of Smyrna's seven town council members attending an evening gathering of a citizens' group pushing for a town charter recall provision did …
If a Delaware town redacts parts of its executive session meeting minutes, who has to prove the redaction was justified?
The town does, according to this opinion. The AG upheld redactions for still-pending land purchases, litigation, and personnel matters, but ordered disclosure of portions covering routine police admin…
If a Delaware board privately discusses and decides an appeal without a valid reason for executive session, does that automatically undo its decision?
Not necessarily, according to this opinion. The AG found the board violated FOIA's open meeting law by deliberating in private without any of the law's nine authorized reasons, but declined to order a…
Can a Delaware town council privately settle on a budget before the meeting and then just rubber-stamp it during a closed executive session?
No, under the law as it stood in 2005. The AG found the Town of Cheswold violated FOIA when its town manager privately ran the final 2005-2006 budget figures by council members before a July 7, 2005 m…
Can Delaware council members who are sued individually meet privately with the county attorney about their defense strategy?
Yes, according to this opinion. FOIA authorizes a public body to discuss pending litigation strategy with its attorney in executive session when an open meeting would hurt its litigation position, and…
Can a Delaware town withhold months of executive session minutes just by labeling the sessions Personnel and Legal Issues?
No, under the law as it stood in 2005. The AG found the Town of Middletown had no lawful basis to withhold months of executive session minutes, since most of what its council actually discussed behind…
Can a Delaware town discuss ordinary contracts, tax delinquencies, and town hall space in a closed personnel-and-legal executive session?
No, under the law as it stood in 2005. The AG found the Town of Dagsboro violated FOIA by discussing six of eight matters, zoning-compliance procedures, two ongoing contracts, town hall space, tax del…
Can a Delaware county council add a contract vote and an executive session to its agenda at the start of the same meeting?
No, under the law as it stood in 2005. The AG found Sussex County Council violated FOIA by adding both a fence-contract change order and a request for an executive session on land acquisition to its a…
If a school district calls a special meeting without explaining why it skipped the normal notice period, can re-voting at a later regular meeting fix the problem?
Yes, under the law as it stood in 2005. The AG found the Woodbridge School District violated FOIA by not explaining in its June 13, 2005 special meeting notice why it couldn't give the normal seven da…
Can a Delaware police department withhold its internal operations manual and checkpoint procedures from a FOIA request by citing officer safety?
Partly, according to this opinion. A police department's checkpoint guidelines were exempt from FOIA because releasing them could expose law-enforcement tactics and endanger officers, but the index (t…
Can a Delaware school district withhold job interview scoring sheets from a FOIA request to protect the applicants' privacy?
Yes, according to this opinion. Even though FOIA's personnel-file exemption doesn't technically apply to job applicants, the AG found a common-law privacy exemption protects interview panel scoring sh…
Can a Delaware county council go into a closed executive session to hear its attorney's report on pending lawsuits before voting to shift budget money to legal fees?
Yes, under the law as it stood in 2005. The AG found New Castle County Council's Administrative-Finance Committee lawfully met behind closed doors to hear the County Attorney's report on funding needs…
Are autopsy and post-mortem reports public records in Delaware, or can police withhold them under FOIA?
No, they're not public. This opinion held that post-mortem reports prepared by Delaware's Chief Medical Examiner are exempt from FOIA as investigative files, and that a police department that merely r…
Does starting a planning commission meeting an hour early, then rushing the final council vote onto the agenda, void a subdivision approval in Delaware?
Yes, under the law as it stood in 2005. The AG found the City of New Castle violated FOIA when its Planning Commission met an hour earlier than the publicly noticed time to recommend a subdivision, an…
Can a Delaware city interview finalists for a lobbyist contract in a closed executive session the way it would for a job applicant?
No, under the law as it stood in 2005. The AG found the City of Newark violated FOIA by holding two closed executive sessions to interview and compare two outside firms competing for a lobbying servic…
Can a Delaware public body vote in public to hire one of two final job candidates without naming them at the time of the vote?
No, under the law as it stood in 2005. The AG found the New Castle County Council's Personnel Committee did not violate FOIA by voting in open session to hire Candidate A over Candidate B for counsel …
Does a Delaware town have to release a public employee's draft contract before it is finalized?
Not while it is still a genuine working draft, but according to this opinion, once a town council votes at a public meeting to approve the contract, even subject to further legal review, it becomes a …
If a city council member raises an off-agenda topic during the public comment portion of a meeting, can the council act on it right then?
No, and that's what Dover correctly did, under the law as it stood in 2005. The AG found the City of Dover did not violate FOIA when a councilman raised pension plan investment concerns during the cou…
Does a Delaware county council have to explain why it amended a meeting agenda to name a specific employee in a personnel matter?
No, under the law as it stood in 2005. The AG found New Castle County Council did not violate FOIA when it called a special meeting about its County Auditor on roughly 32 hours' notice, since the noti…
If Delaware council members privately agreed how to vote before a public meeting, who has to prove it happened?
The person alleging the secret meeting has to come forward with real evidence, not just suspicion, that a quorum actually met; only then does the burden shift to the public body to prove no FOIA viola…
Can a Delaware citizen force a school district to create a new report instead of just handing over the underlying records?
No. The opinion found that once a school district hands over all the underlying documents responsive to a records request, Delaware's FOIA does not require it to also compile or reformat that data int…
Can a Delaware zoning board use its written case decisions as its meeting minutes, and can it charge $4 a page for a hearing transcript?
No to both, under the law as it stood in 2005. The AG found the Rehoboth Beach Board of Adjustment violated FOIA by not posting a complete agenda seven days ahead of a meeting, by relying on its writt…
Can a Delaware town call a rushed special meeting to fire its solicitor if the agenda just says "Town Solicitor"?
No, under the law as it stood in 2005. The AG found the Town of Frederica violated FOIA when it called a special meeting on three days' notice to vote out its Town Solicitor without stating why the no…
Does a Delaware city council violate open meetings law by holding a properly noticed meeting at an unusual time, place, or without a tape recording?
No, under the law as it stood in 2005. The AG found the New Castle City Council did not violate FOIA by holding two properly noticed budget meetings at an unusual day, time, and location, without an e…
If council members pass a critical letter around and sign it one by one, does that count as an illegal secret meeting under Delaware's FOIA?
Yes, under the law as it stood in 2005. The AG found the Town of Smyrna Town Council violated FOIA when one council member drafted a letter criticizing a fellow member and, one-on-one, showed it to an…
What does Delaware AG Opinion 2005-01-13-test (test) say?
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Can a Delaware city keep executive session minutes secret when they cover a city solicitor's pay instead of a city employee's?
No, under the law as it stood in 2005. The AG found the City of Newark properly kept confidential the portion of its executive session minutes discussing the City Secretary's raise, since she is a pub…
Can a Delaware school board stop a citizen from naming specific employees during the public comment period of an open meeting?
No, according to this opinion, at least not just because a personnel topic is involved. The AG found that once a public body opens the floor for public comment, it creates a forum where it cannot sile…
If a newly formed Delaware county committee gathers on just 24 hours' notice but doesn't actually discuss any county business, does that violate the open meeting law?
No, according to this opinion. The AG found the county should have given the normal seven days' notice rather than treating the committee's first gathering as a 'special' meeting, but that the gatheri…
Can a newspaper get a police accident report if it isn't a party to a lawsuit the county says the report relates to?
The county couldn't use the pending-litigation exemption against a non-party newspaper, according to this opinion, but the AG still found the accident report exempt for a different, independent reason…
If county council members reach agreement over a series of one-on-one phone calls, does that count as an illegal secret meeting under Delaware's FOIA?
Yes, under the law as it stood in 2004. The AG found New Castle County Council members violated FOIA when one councilman built a signed consensus of a quorum through a series of one-on-one phone calls…
Can a Delaware school board hold a retreat out of state to discuss district business without public notice?
No, under the law as it stood in 2004. The AG found the Cape Henlopen School Board violated FOIA when a quorum of members discussed district business at a retreat in Chestertown, Maryland, both becaus…
Can a Delaware school district keep its union contract negotiation drafts and strategy secret until a final deal is reached?
Yes, according to this opinion. The AG found draft contract proposals and negotiating strategy tied to ongoing collective bargaining are exempt from FOIA and can be discussed in closed executive sessi…
Can a Delaware town bar someone from a public meeting because it suspects he posted critical comments online?
No, under the law as it stood in 2004. The AG found the Town of Cheswold violated FOIA and the First Amendment by barring a recently terminated employee from a town council meeting based on suspicion …
Does a Delaware public body have to create new records or compile data just because someone asks for it under FOIA?
No, according to this opinion. The AG found FOIA only requires a public body to give access to records it has actually created and kept, not to generate new summaries, run special computer searches, o…
Can a Delaware planning commissioner join a public meeting by speakerphone, and can the commission limit who speaks before it votes?
Yes to both, under the law as it stood in 2004. The AG found a Town of Odessa Planning Commissioner could participate by speakerphone in two meetings because a quorum of the commission was physically …
Can a Delaware town refuse to release a lawsuit settlement agreement because the parties privately agreed to keep it confidential?
No, according to this opinion. The AG found a town violated FOIA by withholding a settlement agreement that ended a civil rights lawsuit against the town, because a private confidentiality agreement b…
If a town council adds items to its meeting agenda without the required notice explanation, does re-posting them at the next meeting fix the FOIA violation?
Yes, under the law as it stood in 2004. The AG found the Town of Milton violated FOIA by adding six items to its March 1, 2004 meeting agenda without explaining why seven days' notice couldn't be give…
Can a Delaware town raise its public-records copying fee without adopting a written fee policy first?
No, under the law as it stood in 2004. The AG found the Town of Odessa could not enforce its increase from 15 cents to $1 per page for copying public records because it never adopted a written rule se…
Can a Delaware county black out its legal bills for defending an employee under federal investigation, or does the public get to see the total cost?
The public gets to see the total cost, according to this opinion, even though the names of other employees who might be grand jury witnesses can stay hidden. The AG found the county could redact infor…
If a school board's amended agenda skips a required explanation, does re-voting on the same item at a later meeting fix the FOIA violation?
Yes, under the law as it stood in 2004. The AG found Woodbridge School District violated FOIA by not explaining, in an amended agenda, why it added a school board election date item without seven days…
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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.