Can a Delaware school district keep its union contract negotiation drafts and strategy secret until a final deal is reached?

Official title

04-IB16 RE: Freedom of Information Act Complaint Against Brandywine School District

Plain-English summary

An editor for a local news website complained that the Brandywine School District violated FOIA by refusing to release draft contracts and proposals exchanged with the teachers' union (BEA) during ongoing contract negotiations, and by discussing those proposals in closed executive session rather than public meetings. At the time, the district and the union were still negotiating a replacement for a contract set to expire, and no final deal had been reached.

The AG found no violation on either point. FOIA's public records law specifically excludes "any records involving labor negotiations or collective bargaining," and the AG read that broadly enough to cover preliminary drafts and internal strategy documents exchanged during an active negotiation, since publicizing one side's position mid-negotiation would just hand that strategy to the other side at the bargaining table. The same logic justified discussing those negotiations in executive session, since an open meeting airing the district's bargaining goals would have hurt its negotiating position. The AG did note, and the district agreed, that once a final contract is actually reached, it has to go to the board as a public record and be discussed in open session, and separately suggested the district be more specific in the future about labeling exactly what "negotiations" topic is being discussed when it calls an executive session.

Currency note

This opinion was issued in 2004. 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 district withhold draft contract proposals it's exchanging with a teachers' union during ongoing negotiations?

Yes, according to this opinion. The AG found FOIA's exclusion for "any records involving labor negotiations or collective bargaining" covers preliminary drafts and strategy documents exchanged while bargaining is still underway, since releasing one side's position would undercut its bargaining position.

Can a school board discuss union contract negotiations behind closed doors in executive session?

Yes, according to this opinion, as long as an open discussion would actually hurt the district's bargaining or litigation position. The AG found FOIA authorizes executive session for collective bargaining strategy sessions precisely because publicly airing negotiating goals mid-negotiation would put the district at a disadvantage.

Once a school district and a union finally agree on a new contract, does that agreement have to become public right away?

Yes, according to this opinion. The AG found that once both sides reach a final agreement, it should be presented to the board as a matter of public record and deliberated upon in open, public session, unlike the preliminary drafts that came before it.

Background and statutory framework

Delaware's FOIA opens public records to citizen inspection, 29 Del.C. § 10003, but excludes "[a]ny records involving labor negotiations or collective bargaining" from the definition of a public record, § 10002(g)(8). It separately authorizes executive session for "[s]trategy sessions . . . with respect to collective bargaining . . . but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body," 29 Del.C. § 10004(b)(4). The AG relied heavily on its own prior decision, Att'y Gen. Op. 01-IB03, which had already established that this records exclusion covers negotiation strategy documents (because disclosure "would unfairly disadvantage and adversely affect" the district) and that the same reasoning "logically" extends to justify closed executive sessions on the same topic, citing § 10004(a)(6). The AG also carried forward that opinion's caution that a public body should clearly and specifically label what it means by "Negotiations" when noticing an executive session, rather than using it as a vague catch-all.

Citations

• 29 Del.C. § 10003 (public records open to citizen inspection)
• § 10002(g)(8) (records involving labor negotiations or collective bargaining excluded from FOIA)
• 29 Del.C. § 10004(b)(4) (executive session for collective bargaining strategy sessions)
• § 10004(a)(6) (executive session to discuss contents of documents excluded from disclosure)

Source

• Landing page: https://attorneygeneral.delaware.gov/2004/10/13/04-ib16-re-freedom-of-information-act-complaint-against-brandywine-school-district/
• Original PDF: not linked from landing page

Original opinion text

The source page for this opinion used a legacy symbol-font encoding where quotation marks, apostrophes, section symbols, and dashes were rendered as stray Latin characters (for example, "A" and "@" in place of quotation marks). Those characters have been restored below for readability; the linked landing page is authoritative for the exact source formatting.

October 13, 2004

New Castle County/Civil Division

Mr. Jim Parks

Editor

Delaforum.com

2411 Berwyn Road

Wilmington, DE 19810-3524

RE: Freedom of Information Act Complaint Against Brandywine School District

Dear Mr. Parks:

On or about July 29, 2004, you filed with our office a Freedom of Information Act ("FOIA") complaint, alleging that the Brandywine School District (the "District") violated the public record requirements of FOIA by failing to provide you with copies of proposed or pending contracts and other documents between the District and the Brandywine Education Association ("BEA") teachers' union prior to final ratification of a contract by the Board of Education. You further contend that the District violated the open meeting requirements of FOIA by failing to discuss the preliminary contracts and/or proposals in public session.

By letter dated August 3, 2004, Deputy Attorney General W. Michael Tupman requested the District to respond to your complaint. The District's response was filed by Staff Attorney Ellen Marie Cooper on August 16, 2004.

Based upon the information we have received, we conclude that the District did not violate the provisions of FOIA with regard to the issues you present, either as to public records disclosure or open meetings.

1. Factual Background.

Based upon information supplied by you and the District, it appears that the District has, throughout much of 2004, been engaged in negotiations and collective bargaining with BEA in an attempt to reach a new collective bargaining agreement to replace an agreement set to expire on August 31, 2004. The District Board of Education met in executive session on at least two occasions, March 8, 2004 and July 12, 2004 to discuss, inter alia, negotiations with BEA. No final agreement has been reached. The District has objected to publication of the requested interim documentation, but does agree to produce the new agreement and other public documents once the final agreement has been ratified by both sides.

2. Documents Pertaining to Collective Bargaining and Negotiations.

FOIA provides for public access by Delaware citizens to "public records." 29 Del.C. § 10003. "Public Records" are broadly defined at § 10002(g) as information held by a public body "relating in any way to public business." However, the statute provides for certain exceptions and limitations to the scope of public records. It provides, in pertinent part: "[f]or purposes of this chapter, the following records shall not be deemed public:

(8) Any records involving labor negotiations or collective bargaining."

29 Del. C. § 10002(g)(8).

The "any records" language of this exception to FOIA appears clearly to encompass the records sought here, that is, preliminary or draft versions of potential contracts or other documents relating to strategies or proposals by the District in the context of its collective bargaining with BEA.

Our office previously considered another case in which a FOIA complaint was lodged against a school district for failure to disclose minutes of executive sessions during which discussions were held regarding collective bargaining issues. Attorney General Opinion 01-IB03, 2001 WL 1593103 (February 16, 2001). In that case, we stated that the district was authorized to hold such discussions in executive session under § 10002(g)(8) and that minutes memorializing these discussions need not be produced as the contents, including long-term strategies, "would unfairly disadvantage and adversely affect the district." A.G. Op. at p. 3.

The purpose behind the negotiation/collective bargaining exception from public records is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Negotiations need not be adversarial, as your request suggests, for this interest to exist. Each side typically has a strategy to obtain the best possible result, and, in the cases of parties which regularly engage in negotiations or collective bargaining, such as the District and BEA here, long-term strategies. The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Such disclosure, we found in A.G. Op. 01-IB03, "would unfairly disadvantage and adversely affect" the party subject to disclosure.

3. Executive Session.

We also do not find that the District has violated FOIA by holding its discussions regarding collective bargaining and proposals for a collective bargaining agreement in executive session. The "Open Meetings" provision of FOIA allows for executive sessions, closed to the public for, inter alia, "Strategy sessions . . . with respect to collective bargaining . . . but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." 29 Del.C. § 10004(b)(4). It appears, from the facts presented here, that the District has an interest in maintaining its bargaining position vis a vis the BEA in their efforts to reach a new agreement. An open meeting, during which the District would discuss its goals and strategies in public would have an "adverse effect" on that position.

In addition, A.G. Op. 01-IB03 found that since documents pertaining to collective bargaining were exempt from FOIA disclosure pursuant to § 10002(g)(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 issue may disclose the contents of documents exempted from disclosure under FOIA." See also § 10004(a)(6).

We do believe, and the District appears to agree, that the contents of a final bargaining agreement, agreed upon by both negotiating parties, should be presented to the Board as a matter of public record and deliberated upon in public session.

Finally, while it appears that the Executive Sessions were properly noticed, according to agendas submitted with the District's August 16, 2004 response, the District should consider, in the future, more specifically identifying the subject of the "Negotiations" which are to be discussed in Executive Session. See A.G. Op. 01-IB03 at p. 4 (reasons for going into executive session should be "clearly delineated").

CONCLUSION

For the foregoing reasons, we conclude that the District did not violated the provisions of the Delaware Freedom of Information Act, by holding meetings regarding collective bargaining and negotiations in Executive Sessions and by refusing to release, as public documents, documents created for and arising out of those meetings.

If you have any questions, please do not hesitate to contact our office.

Very truly yours,

Stephani J. Ballard

Deputy Attorney General

APPROVED:

Malcolm S. Cobin

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Mr. Philip Johnson, Opinion Coordinator

Ellen Marie Cooper, Esquire