How specific does a Delaware public body's notice for an executive session have to be about personnel matters?

Official title

10-IB03 RE: Freedom of Information Act Complaint Against Ocean View

Plain-English summary

An Ocean View councilman complained about a January 2010 executive session, arguing the notice was too vague (he assumed it covered the town manager's contract but it turned out to be about the police chief's), that the town manager was wrongly excluded from the session, and that the topics discussed were not appropriate for a closed session.

The AG rejected the notice challenge outright. Executive session notices did not have to spell out topics as fully as a regular meeting agenda, and when confidential personnel matters were on the table, the notice did not even have to name the employee involved, so "Executive Session to Discuss Contract and Personnel Issues" was adequate regardless of which employee it turned out to cover. Discussing the police chief's qualifications and performance was squarely within FOIA's personnel exemptions. The closer question was whether the town could also discuss its negotiating strategy and position for the chief's contract in private, since FOIA's text only explicitly protects "strategy sessions" in the collective bargaining context, and a police chief is not part of a union bargaining unit. The AG extended that same protection here anyway, reasoning that FOIA's broader purpose of protecting a public body's competitive position in ongoing contract negotiations applies just as much to an individual employment contract as to a union contract; forcing a town to negotiate in public would put it at a real disadvantage without serving anyone's interest. The AG did not decide whether the town could exclude the town manager himself from the session, since FOIA is silent on that question, and left open whether the police chief was ever offered the chance to request a public discussion of his own personnel matters, since the record did not show either way. Separately, the AG flagged, without deciding, that the town may have violated a different notice rule by adding this agenda item less than seven days before the meeting without explaining the delay, but since the complainant had not raised that issue and the town had not had a chance to respond to it, the AG limited itself to a caution to comply going forward rather than invalidating the meeting.

Currency note

This opinion was issued in 2010. 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

Did a Delaware public body have to name the employee involved when it posted notice of an executive session about personnel matters?

No, according to this opinion. When confidential personnel matters would be discussed, the notice did not need to name the individual, and did not need to be as detailed as a regular meeting agenda.

Could a Delaware town discuss its negotiating strategy for an individual employee's contract behind closed doors, even outside a union bargaining context?

Yes, according to this opinion. Even though FOIA's text specifically protected collective-bargaining strategy sessions, the AG extended the same reasoning to an individual employment contract negotiation, since public bargaining would put the town at a real disadvantage.

Could a citizen challenge a government meeting for a notice problem they never actually raised in their complaint?

Not really, according to this opinion. The AG noted a possible separate notice violation on its own, but declined to invalidate the meeting over it because the complainant had not raised the issue and the town had never had a chance to respond to it.

Background and statutory framework

FOIA required meetings of public bodies to be open unless closed for one of nine enumerated topics, with notice and an agenda stating the specific purposes for an executive session, 29 Del. C. § 10004 (referencing the agenda requirement at § 10002(a)), including discussion of "an individual's qualifications for a job," id. § 10004(b)(1), and "[p]ersonnel matters in which the names, competency and abilities of individual employees … are discussed." Id. § 10004(b)(9). A public body could also use executive session to discuss non-public documents, id. § 10004(b)(6), such as "records involving labor negotiations," id. § 10002(g)(8), and could hold "[s]trategy sessions … with respect to collective bargaining" in executive session "only when an open meeting would have an adverse effect on the bargaining … position of the public body." Id. § 10004(b)(4).

While FOIA must be "construed liberally to effect open government" with its exceptions "construed strictly," per the Delaware Supreme Court's Del. Solid Waste Auth'y v. News-Journal Co., the AG noted that FOIA's purpose is not to obstruct legitimate government functioning, citing the U.S. Supreme Court's Adm'r, FAA v. Robertson for that same principle under federal law and the requirement that any reasonable copying expense be charged to the requester, 29 Del. C. § 10003(a). Reading the collective-bargaining exemptions together, the AG concluded the General Assembly intended not to undermine any public body's contract negotiations, extending that protection to the police chief's individual employment contract even though it fell outside formal collective bargaining. The AG separately noted, without resolving it, a possible violation of 29 Del. C. § 10004(e)(5)'s requirement that a public body state its reason for a late agenda addition, since the record suggested the town added this item less than seven days before the meeting without explanation.

Citations

• 29 Del. C. § 10004 (meetings of public bodies must be open unless closed for an enumerated purpose)
• 29 Del. C. § 10002(a) (agenda requirements for public meetings)
• 29 Del. C. § 10004(b)(1) (executive session permitted to discuss an individual's job qualifications)
• 29 Del. C. § 10004(b)(9) (executive session permitted for personnel matters discussing names, competency, and abilities of individual employees)
• 29 Del. C. § 10004(b)(6) (executive session permitted to discuss non-public documents)
• 29 Del. C. § 10002(g)(8) (records involving labor negotiations are not public records)
• 29 Del. C. § 10004(b)(4) (executive session permitted for collective bargaining strategy sessions with an adverse-effect showing)
• 29 Del. C. § 10003(a) (reasonable copying expenses may be charged to the requester)
• 29 Del. C. § 10004(e)(5) (a late agenda addition must state the reason for the delay)
• Del. Solid Waste Auth'y v. News-Journal Co., 480 A.2d 628, 631 (Del. 1984) (Delaware state court; FOIA is construed liberally to effect open government, its exceptions strictly)
• Adm'r, FAA v. Robertson, 422 U.S. 255, 262 (1975) (U.S. Supreme Court; a public records law's purpose is not to obstruct legitimate government functioning)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/03/10/10-ib03-re-freedom-of-information-act-complaint-against-ocean-view/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB03 (Del.A.G.), 2010 WL 1048826

Office of the Attorney General

State of Delaware

Opinion No. 10 – IB03

March 10, 2010

RE: Freedom of Information Act Complaint Against Ocean View

*1 Mr. Perry J. Mitchell

3 Patrick’s Court

Ocean View, DE 19970

Dear Mr. Mitchell:

You currently serve as Councilman for the Town of Ocean View (“the Town”). On January 15, 2010, the Delaware Department of Justice (“DDOJ”) received your complaint alleging that the Town violated the Freedom of Information Act (“ FOIA ”) in three respects concerning an executive session of the Town Council on January 12, 2010. You challenge 1) the adequacy of the notice of the executive session in the posted agenda; 2) the exclusion of the town manager from the executive session; 1 and 3) whether the matters discussed were appropriate for an executive session. On January 19, 2010, the DDOJ forwarded your complaint to the Town. We received its response on January 20, 2010. This is the DDOJ’s determination of your complaint pursuant to 29 Del. C. § 10005 (e).

RELEVANT FACTS

On January 7, 2010, the Town revised its agenda for its January 12, 2010 regular meeting to include, “5. Executive Session to Discuss Contract and Personnel Issues.” You allege you were “led to believe” that the executive session was to discuss the town manager’s contract, but that when the Council went into executive session you learned that the topic was the Chief of Police’s employment contract. According to the Town, the “the matters raised at the executive session … include[d] discussions of current contract terms, negotiation positions, performance evaluations and [negotiation] strategy ….”

RELEVANT STATUTES

While 29 Del. C. § 10004 requires that all meetings of public bodies be open to the public, it permits a public body to meet in closed (executive) session to discuss any of nine enumerated topics, provided the public receives notice of the body’s intent to meet in executive session, the agenda includes the specific purposes for the executive session ( 29 Del. C. § 10002 (a)), the vote to meet in executive session is conducted at the public meeting, and all votes are public. An executive session is permitted for the discussion of an individual’s qualifications for a job, 29 Del. C. § 10004 (b)(1), and for “[p]ersonnel matters in which the names, competency and abilities of individual employees … are discussed ….” 29 Del. C. § 10004 (b)(9). 2 A public body may use executive session to discuss documents that are not public records, 29 Del C. § 10004 (b)(6), such as “records involving labor negotiations.” 29 Del. C. § 10002 (g)(8). “Strategy sessions … with respect to collective bargaining” may be conducted in executive session, but “only when an open meeting would have an adverse effect on the bargaining … position of the public body.” 29 Del C. § 10004 (b)(4).

DISCUSSION

2 We have previously held that notice of an executive session does not have to give as full an explanation of the topics for discussion as an agenda for a public meeting and, when confidential personnel matters will be discussed, the notice does not have to include the name of the individual under discussion. Del Op. Att’y Gen. 07-IB20 , 2007 WL 4732803, 2 (Del. A.G. Sept. 10, 2007) . Under that standard, the notice for the January 12, 2010 executive session was sufficient. Moreover, use of executive session to discuss the Chief of Police’s job qualifications and performance is clearly permissible under 29 Del C. §§ 10004 (b)(1) and (9).

The January 12, 2010 executive session also addressed the Town’s negotiating strategy regarding the Chief of Police’s contract. While FOIA does not expressly address strategy sessions regarding employment contracts outside of the collective bargaining context, we have previously determined that FOIA “protects ‘the competitive position of a public body engaged in ongoing contract negotiations.’ Att’y Gen. Op. 05-IB24.” Del. Op. Att’y Gen. 06-IB15 , 2006 WL 2355969, at *3 (Del. A.G. July 24, 2006) . The open meeting exceptions for discussion of “records involving labor negotiations.” 29 Del. C. § 10002 (g)(8), read in conjunction with the exception at 29 Del. C. § 10004 (b)(4) for “[s]trategy sessions … with respect to collective bargaining … when an open meeting would have an adverse effect on the bargaining … position of the public body,” evidences the General Assembly’s intent not to undermine labor negotiations.

FOIA must be construed liberally to effect open government, and its exceptions must be construed strictly. Del. Solid Waste Auth’y v. News-Journal Co. , 480 A.2d 628, 631 (Del. 1984) . FOIA’s purpose, however, is not to stymie legitimate governmental functioning. See Adm’r, FAA v. Robertson , 422 U.S. 255, 262 (1975) . Neither is FOIA intended to impose a financial burden on the public. See 19 Del. C. § 10003(a) (“Any reasonable expense involved in the copying of … records [requested pursuant to FOIA ] shall be levied as a charge on the citizen requesting such copy.”). A public body forced to formulate publicly its strategies for contract negotiations would be at a decided negotiating disadvantage, and the public would not be well-served thereby.

CONCLUSION

For the reasons stated herein, the Town of Ocean View did not violate FOIA in conducting an executive session to discuss renewal of the employment contract of a Town employee. It should be noted, however, that the Town may have violated 29 Del. C. § 10004 (e)(5) by failing to state its reason for modifying the agenda for the January 12 regular meeting less than seven days before the meeting date. You did not raise this issue in your complaint, and as the Town has not had an opportunity to address it, there is no reason to invalidate the meeting for this possible violation. Nonetheless, the Town is cautioned to comply in the future with all of the notice requirements of 29 Del. C. § 10004 (e).

Sincerely,

*3 Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
FOIA does not address whether the Town Council can exclude a Town employee from an executive session, and, therefore, that issue will not be determined here.

2
Subsections (1) and (9) of section 10004(b) both provide that matters must be discussed in public if the person under scrutiny so requests. The record here does not reveal whether the Ocean View Chief of Police was given an opportunity to request a public discussion.

Del. Op. Atty. Gen. 10-IB03 (Del.A.G.), 2010 WL 1048826