Why Should Delaware Care?
Under current Delaware law, only state lawmakers are allowed to have private communications without triggering public record requirements. However, a recent Wilmington proposal would extend the same privileges to Wilmington city council members. While supporters of the change say it would allow officials to deal with city issues more efficiently, some say it defeats the purpose of the Freedom of Information Act.
The Wilmington City Council is asking state lawmakers to allow them to bypass public records laws and hold certain meetings in private.
Late last week, the city council unanimously passed a resolution requesting that the Delaware General Assembly create an exemption from the Freedom of Information Act for meetings attended by council members of the same political party – referred to in the proposal as any “caucus of the City Council.”
Every member of the city council is a Democrat, except for one.
City officials say the exemption would give council members the ability to freely discuss ideas and key issues related to business or proposed legislation. But opponents say the public should be able to access those communications.
If the resolution is approved by the General Assembly, regular council and committee meetings will continue to be held publicly, as they are now. However, council members would also be permitted to meet privately among themselves to discuss various city-related affairs.
First District Councilman Coby Owens, who sponsored the bill, said communications between council members pertaining to different city matters and legislation are currently limited. Only two council members of the same committee can talk privately, while only six members of the full body can be in the same room to converse at a time.
“This just gives everyone an opportunity to come together. No decisions will be made, no private voting or anything like that. It would follow the same structure again of the General Assembly,” Owens said.
Currently, meetings and communications between state lawmakers are not considered public records under the Delaware Code, while communications between municipal officials are only exempt if they touch on topics, such as medical records, trade secrets, or ongoing criminal investigations.
During last week’s council meeting, council members asserted that the bill is important to the efficiency of how they discuss different legislation and issues, such as housing and crime.
“We can’t just all get in the room and hash out policy ideas. We can’t even have a retreat without it being an official meeting,” Seventh District Councilman Chris Johnson said.
Despite the support from council members, others say the proposal imposes on the public’s right to be present for discussions between city officials.
John Flaherty, a member of the board of directors for Delaware Coalition For Open Government, is against the resolution and says that the city government should be working toward more transparency, not less.
“Currently, there’s about 15 different exemptions in the law which allows them to meet in secret. If one of those situations is triggered, they can go and keep the public out, so there’s plenty of opportunities for them to have what they call an open and honest discussion. But I would say that the public has a right to be there,” he said.
Twelve council members co-sponsored the resolution. At-large Councilwoman Maria Cabrera was absent for the vote last Thursday but she said she remains “neutral” on the matter.
While she acknowledges that communications between council members on city issues can slow things down, she feels the current FOIA statute is in place for a reason.
“I understand the reason for it, but at the same time, the reason that’s in place is so that if we are discussing the people’s business, and there is a quorum, that it be public, that people are informed, that they have access to that freedom of information,” she said.
Though he would be shut out from Democratic caucus meetings, the sole Republican on the council, Councilman James Spadola, also cosponsored the resolution. But, when asked about it, he said he is neutral on the measure. He said he voted in favor of it, because “it gets us consistent with the state.”
Owens said that now the resolution has passed, the city clerk will send it to the General Assembly sometime this week.
He plans to reach out to state lawmakers soon to alert them to the legislation, he said. Once Dover receives the resolution, the proposal must be sponsored by two state legislators — one from the House of Representatives and one from the Senate.
A bill specifically adding the FOIA exemption would then need to pass before a deadline of July 1, 2026.
