Can a Delaware school board go into closed session to discuss collective bargaining, and does it have to say so on the agenda?

Official title

01-IB03 Re: Freedom of Information Act Complaint Against Polytech School District

Plain-English summary

Joseph Shetzler, president of a teachers' association, complained that the Polytech School District posted agendas for eight meetings that called for executive session to discuss "personnel matters," when the District was actually discussing collective bargaining negotiations. He also complained that the District refused his request for minutes of all executive sessions held over the prior year, particularly because he suspected the District had discussed bargaining strategy behind closed doors.

The AG found the District was allowed to go into executive session over collective bargaining, because Delaware FOIA exempts labor negotiation and collective bargaining records from the definition of a public record, and that exemption lets a public body meet privately when the discussion could reveal the contents of those exempt records. But the District had used the wrong label: it should have cited the collective bargaining exemption, not the "personnel matters" exemption, on its meeting agendas. On the withheld minutes, the AG accepted the District's explanation that revealing its negotiation strategy, including between bargaining sessions, would put it at a disadvantage, and found no violation, deferring to the District's judgment absent evidence of bad faith.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware school board legally hold closed-door meetings to discuss union contract negotiations?

Yes, according to this opinion. The AG found that collective bargaining and labor negotiation records are exempt from FOIA's public records definition, and that this exemption extends to letting the board meet in executive session when the discussion would reveal the contents of those exempt records.

If a public body's agenda cites the wrong reason for going into executive session, does that make the closed meeting illegal?

According to this opinion, mislabeling the reason is itself a FOIA violation, even where the board had a valid reason available. The AG found the District violated FOIA's notice requirements by describing its collective bargaining sessions as "personnel matters" instead of citing the correct exemption, even though the District was legally entitled to meet privately for that purpose.

Does a public body have to release the minutes of a closed-door meeting about union negotiations?

Not necessarily, based on this opinion. The AG accepted the District's explanation that disclosing its negotiation strategy, including between bargaining sessions, would put it at a disadvantage, and deferred to that judgment because there was no evidence of bad faith or unequal treatment.

Background and statutory framework

Delaware FOIA authorizes a public body to hold an executive session to discuss nine categories of matters, including personnel matters, 29 Del. C. § 10004(b)(9), and "the content of documents excluded from the definition of 'public record'" where discussion would disclose those documents, 29 Del. C. § 10004(b)(6). Separately, FOIA excludes "records involving labor negotiations or collective bargaining" from the definition of a public record, 29 Del. C. § 10002(d)(8), which the AG read together with the § 10004(b)(6) executive session authorization to permit closed sessions on bargaining topics. On minutes, FOIA also excludes "record[s] of discussions held in executive session," 29 Del. C. § 10002(d)(10), but only "so long as public disclosure would defeat the lawful purpose for the executive session," 29 Del. C. § 10004(f). The opinion cites the office's own prior opinion allowing a school board to discuss scholarship applications in executive session where doing so required reviewing exempt records like tax returns, as support for treating certain exempt-document discussions as falling within the executive session authorization even without an exact one-to-one label match.

Citations

• 29 Del. C. § 10004(b)(9) (executive session for personnel matters)
• 29 Del. C. § 10004(b)(6) (executive session to discuss contents of documents excluded from "public record" definition)
• 29 Del. C. § 10002(d)(8) (labor negotiation and collective bargaining records excluded from "public record" definition)
• 29 Del. C. § 10002(d)(10) (records of executive session discussions excluded from "public record" definition)
• 29 Del. C. § 10004(f) (executive session minutes exemption lasts only as long as needed to serve its purpose)

Source

• Landing page: https://attorneygeneral.delaware.gov/2001/02/16/01-ib03-re-freedom-of-information-act-complaint-against-polytech-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 01-IB03 (Del.A.G.), 2001 WL 1593103

Office of the Attorney General

State of Delaware

Opinion No. 01 – IB03

February 16, 2001

Re: Freedom of Information Act Complaint Against Polytech School District

*1 Mr. Joseph M. Shetzler, III

President

Polytechnic Education Association

823 Walnut Shade Road, Box 97

Woodside, DE 19980

Dear Mr. Shetzler:

Our Office received your Freedom of Information Act ("FOIA") complaint on January 4, 2001. You allege that the Polytech School District ("the School District") violated the open meeting requirements of FOIA by failing to post complete agendas for eight meetings. You also allege that the School District violated the public record requirements of FOIA by not honoring your request (by letter dated October 27, 2000) for copies of the minutes of all executive sessions held since January 1, 2000. You expressed particular concern that the School District may have discussed collective bargaining issues in executive session in violation of FOIA .

By letter dated January 4, 2001, we asked the School District to respond to your complaint within ten days. The School District's attorney asked for an extension of time due to illness in her family, which we granted. We received the School District's response on January 30, 2001.

A. Agendas

The parties do not dispute that the agendas for the May 8, June 12, July 10, August 14, September 11, October 9, November 13, and December 18, 2000 stated that the School District would go into executive session to discuss: "Personnel matters in which names, competencies and abilities of individual employees are discussed." According to the School District, it "considers collective bargaining negotiations to be part of personnel issues" and therefore within FOIA's authorization for executive session for "personnel matters," 29 Del. C. § 10004(b)(9) .

FOIA authorizes a public body to go into executive session to discuss any of nine matters, including "the content of documents, excluded from the definition of 'public record in Section 10002 of this title where such discussions may disclose the contents of such documents." 29 Del. C. § 10004(b) 6). In Att'y Gen. Op. 96-IB30 (Sept. 25, 1996), this Office determined that it was proper for the school board to meet in executive session to consider scholarship applications, because the board had to review academic transcripts and parents' tax returns, which documents were exempt from disclosure under FOIA .

We think the same rationale applies here with regard to discussions about labor negotiations and collective bargaining agreements. FOIA exempts from the definition of a "public record" any "records involving labor negotiations or collective bargaining." 29 Del. C.

§ 10002(d)(8). Logically, FOIA also permits a public body to go into executive session to discuss labor negotiations or collective bargaining because the discussion of those issues may disclose the contents of documents exempted from disclosure under FOIA . Therefore, we do not find that there was a violation of FOIA to have held those discussions in executive session.

*2 However, because the School District inaccurately equated labor negotiations or collective bargaining with "personnel matters," it listed the wrong FOIA exemption for executive session in the agendas for the eight meetings at issue.

In its response to your complaint, the School District has pledged in the future to distinguish executive sessions to discuss labor negotiations/collective bargaining from executive sessions to discuss personnel matters in the agendas for its meetings. We think that will be an appropriate remediation. FOIA authorized the School District to go into executive session to discuss labor negotiations or collective bargaining, and no purpose would be served by directing the School District to re-notice the matters discussed in earlier executive sessions since the School District would be allowed to discuss collective bargaining issues in an executive session outside of the public view.

B. Executive Session Minutes

FOIA exempts from the definition of a "public record" any "record of discussions held in executive session pursuant to subsection (b) and (c) of Section 10004 of this title." 29 Del. C. § 10002(d)(10) . Section 10004(f) , however, provides that this exemption applies only "so long as public disclosure would defeat the lawful purpose for the executive session, but not longer."

According to the School District, when "collective bargaining negotiations are being addressed, strategies, including long term strategies and philosophies of the District regarding negotiations, are frequently included. Thus, to disclose those summaries, both while negotiations are continuing and during periods of time between negotiations, would unfairly disadvantage and adversely affect the District."

We find the School District's explanation for withholding the executive session minutes you requested to be reasonable, and we will not second-guess the School District's discretionary decision absent a showing of bad faith or disparate treatment.

Conclusion

For the foregoing reasons, we find that the School District violated the open meeting requirements of FOIA by not clearly delineating, in the agendas for its meetings, the reasons why it would be going into executive session. In the future, the School District must specify which of the nine exemptions it is invoking under Section 10004(b) , and should not equate labor negotiations/collective bargaining agreements with personnel matters.

We find that the School District did not violate the public records requirements of FOIA by withholding the minutes of executive sessions you requested. The School District articulated reasonable and legitimate reasons why it exercised its discretion not to make those documents available.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

Del. Op. Atty. Gen. 01-IB03 (Del.A.G.), 2001 WL 1593103