If a union thinks a city is withholding a wage study needed for contract talks, does Delaware's AG decide that dispute or does someone else?

Official title

10-IB07 RE: Freedom of Information Act Complaint Against City of Wilmington

Plain-English summary

A union representing Wilmington employees asked the city for two things during a period when the union and city disputed whether formal collective bargaining was actually underway: a comparable-wage study called the "JAQ report," and records showing how much the city had spent on outside lawyers for past contract talks with the union. The city refused both, arguing everything counted as exempt "records involving labor negotiations or collective bargaining" under FOIA.

On the wage study, the AG identified a genuine conflict between two Delaware laws pulling in different directions. FOIA exempts collective-bargaining records from disclosure, but the state's separate labor law (PERA) makes it an unfair labor practice for a public employer to withhold a FOIA public record from a union, precisely because unions need information to bargain effectively. Reading FOIA's exemption too broadly would let an employer refuse a union almost anything connected to bargaining, gutting that separate protection. Rather than resolve that tension itself, the AG concluded that whether the JAQ report was the kind of information a union has a right to under labor law is fundamentally a labor-law question, one the legislature assigned to the state's Public Employment Relations Board (PERB), which has hearing, subpoena, and fact-finding powers the AG's office lacks. The AG explicitly declined to decide the JAQ report question and left it for PERB to resolve.

The outside-counsel spending records were different. The AG had just held in a separate opinion that records showing how a public body spends money are inherently public, and reasoned that if merely being tangentially related to union negotiations could exempt any spending record, the city could refuse nearly every FOIA request about its budget just by pointing to ongoing labor talks. So the AG ordered the city to turn over its outside-counsel expenditure records, while still allowing it to withhold anything genuinely privileged, like attorney-client communications.

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 Delaware's Attorney General decide whether a wage study or similar record was protected by collective-bargaining rules?

Not necessarily, according to this opinion. The AG explicitly declined to decide whether the requested wage study was covered by FOIA's collective-bargaining exemption, finding that question belonged to the state's Public Employment Relations Board, which has the specialized authority and fact-finding tools to resolve labor-law disputes.

Could a city refuse to disclose its legal spending records just because it was tangentially related to ongoing union negotiations?

No, according to this opinion. Records showing how a public body spends money are inherently public, and treating any spending record as exempt merely because it touched on labor negotiations would let a public employer dodge nearly every FOIA request about its budget.

If two Delaware statutes seemed to conflict, did the AG just pick one and ignore the other?

No, according to this opinion. The AG explained that Delaware courts require reconciling seemingly conflicting statutes where possible, rather than treating one as controlling and ignoring the other.

Background and statutory framework

FOIA's declaration of policy sought easy public access to records, 29 Del. C. § 10001, with reasonable access for inspection and copying, id. § 10003(a), but excluded from "public record" any "records involving labor negotiations or collective bargaining." Id. § 10002(g)(8). Delaware's Public Employment Relations Act, enacted "to promote harmonious and cooperative relationships between public employers and their employees," 19 Del. C. § 1301, charged PERB with resolving public-sector labor disputes, id. § 1301(3), and with preventing unfair labor practices and issuing remedial orders, id. § 1308(a), including treating a public employer's refusal to disclose a FOIA public record as an unfair labor practice in its own right. Id. § 1307(a)(8). PERB's specialized fact-finding tools, hearings, depositions, and subpoena power, are set out at 14 Del. C. § 4006.

Drawing on the U.S. Supreme Court's Detroit Edison Co. v. N.L.R.B. for the principle that a public employer's duty to bargain includes a duty to share information a union needs to represent its members, the AG reasoned that FOIA's collective-bargaining exemption must be read as coextensive with, not broader than, that labor-law duty to disclose. Because answering whether the JAQ report fell inside or outside that duty required the kind of labor-relations fact-finding PERB was built to do, and because the Delaware Supreme Court's Chase Alexa, LLC v. Kent County Levy Court required reconciling apparently conflicting statutes rather than letting one swallow the other, the AG deferred that specific determination to PERB to preserve a single, consistent body of Delaware labor law. On the outside-counsel expenditure records, the AG applied its own recent precedent recognizing that records of a public body's spending are clearly public in nature and ordered their disclosure, subject to redaction of genuinely privileged material. A footnote also noted, citing the Third Circuit's Lee v. Minner, that FOIA's references to "citizens" must be read to reach the entire public to remain constitutional.

Citations

• 29 Del. C. § 10001 (FOIA's declaration of policy: easy public access to records is vital to a free and democratic society)
• 29 Del. C. § 10003(a) (public records open to inspection and copying with reasonable access)
• 29 Del. C. § 10002(g)(8) (exemption for records involving labor negotiations or collective bargaining)
• 19 Del. C. § 1301 (Public Employment Relations Act's purpose and PERB's role in resolving labor disputes)
• 19 Del. C. § 1308(a) (PERB's power to prevent unfair labor practices and issue remedial orders)
• 19 Del. C. § 1307(a)(8) (unfair labor practice for a public employer to refuse to disclose a FOIA public record)
• 14 Del. C. § 4006 (PERB's authority to hold hearings, take depositions, and subpoena records)
• Detroit Edison Co. v. N.L.R.B., 440 U.S. 301, 303 (1979) (U.S. Supreme Court; the duty to bargain collectively includes a duty to provide information a union needs to represent employees)
• Chase Alexa, LLC v. Kent County Levy Court, 991 A.2d 1148, 1152 (Del. 2010) (Delaware state court; apparently conflicting statutes must be reconciled rather than one ignored)
• Lee v. Minner, 458 F.3d 194 (2006) (federal court; FOIA must apply to the entire public, not just Delaware citizens, to be constitutional)

Source

• Landing page: https://attorneygeneral.delaware.gov/2010/08/09/10-ib07-re-freedom-of-information-act-complaint-against-city-of-wilmington/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 10-IB07 (Del.A.G.), 2010 WL 3303364

Office of the Attorney General

State of Delaware

Opinion No. 10 – IB07

August 9, 2010

RE: Freedom of Information Act Complaint Against City of Wilmington

*1 Perry F. Goldlust, Esquire

Law Offices of Perry F. Goldlust, P.A.

702 N. King Street, Suite 600

P.O. Box 1675

Wilmington, DE 19899-1675

Dear Mr. Goldlust:

On July 1, 2010, the Delaware Department of Justice (DDOJ) received your June 30, 2010 letter alleging the City of Wilmington (“City”) had violated the Freedom of Information Act, 29 Del. C. ch. 100 ( FOIA ), in refusing to provide you with public records. On July 2, 2010, we sent your complaint to the City, and asked for their response by July 12, 2010. The City requested and received an extension until July 16, 2010, and we received their timely response on July 15, 2010. We then sought additional information from the City. This is the DDOJ determination of your complaint, pursuant to 29 Del. C. § 10005 (e).

RELEVANT FACTS

As attorney for ASFCME Council 81, Locals 320 and 1102 (“Union”) you requested the following records from the City:

1. The “JAQ report” a comparable wage study,

2. Documentation involving the hiring of outside counsel for prior contract negotiations with the Union.

The City denied your request on the grounds that the City and the Union are engaged in collective bargaining, so that the requested records are not public records, pursuant to 29 Del. C. § 10002 (g)(8) (exempting records “involving labor negotiations or collective bargaining.”). You claim that “collective bargaining is not currently under way,” while the City claims that it is, because the Union has formally asked the City to begin negotiations, and the parties have already met at the negotiating table and are scheduled to meet again in “the near future.”

RELEVANT STATUTES

The Delaware Freedom of Information Act was enacted to ensure that “citizens have easy access to public records in order that the society remain free and democratic.” 1 29 Del. C. § 10001 . FOIA requires that the public must have “reasonable access to” public records for “inspection and copying.” 29 Del. C. § 10003 (a). FOIA excludes from the definition of “public record” “[a]ny records involving labor negotiations or collective bargaining,” 29 Del. C. § 10002 (g)(8).

Labor disputes in the public sector are submitted to the Public Employment Relations Board (“PERB”), pursuant to the Public Employment Relations Act (“PERA”), 19 Del. C. ch. 13. PERA was enacted “to promote harmonious and cooperative relationships between public employers and their employees and to protect the public by assuring the orderly and uninterrupted operations and functions of the public employer.” 13 Del. C. § 1301 . To accomplish those purposes, PERA assigned to PERB the responsibility to “assist in resolving disputes between public employees and public employers ….” 13 Del. C. , § 1301 (3). PERB has the power and the duty “to prevent any unfair labor practice … and to issue appropriate remedial orders.” 19 Del. C. § 1308 (a). It is an unfair labor practice for a public employer to “[r]efuse to disclose any public record as defined by Chapter 100 of Title 29.” 19 Del. C. § 1307 (a)(8).

DISCUSSION

1. The request for the “JAQ” report .

*2 This request directly raises the relationship between PERA and FOIA : the former requiring a public employer to disclose public records to the unions, the latter excluding from the definition of public record any document “involving” collective bargaining. If a record is involved in collective bargaining, it is not a public record, pursuant to 29 Del. C. § 10002 (g)(8), and therefore failure to produce it is not an unfair labor practice, pursuant to 19 Del. C. § 1307 (a)(8). If the exception to FOIA is read expansively, any record that a union requests of a public employer in connection with the collective bargaining process is unobtainable. Yet, the employer’s duty to provide information to the union is central to meaningful collective bargaining. 1 The Developing Labor Law 929 (John E. Higgins, Jr. ed., 2006). “The duty to bargain collectively … includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees’ bargaining representative.” Detroit Edison Co. v. N.L.R.B. , 40 U.S. 301, 303 (1979). The General Assembly’s clear intent in making failure to produce public records an unfair labor practice was to require public employers to produce to unions all information needed for effective collective bargaining.

We cannot simply ignore the plain language of either one of the statutes in apparent conflict, but are required to reconcile them. Chase Alexa, LLC v. Kent County Levy Court , 991 A.2d 1148, 1152 (Del. 2010) . Yet, it is not the statutory role of the Attorney General’s office to determine the parties’ relationships under collective bargaining. It is our role only to give an opinion as to what FOIA means, whereas the General Assembly has designated PERB to resolve labor law issues. It is the express purpose of PERA and PERB to,

promote harmonious and cooperative relationships between public employers and their employees and to protect the public by assuring the orderly and uninterrupted operations and functions of the public employer. These policies are best effectuated by:

…

(3) Empowering the Public Employment Relations Board to assist in resolving disputes between public employees and public employers and to administer this chapter.

19 Del. C. § 1301 ; see also 19 Del. C. §§ 1307 (unfair labor practices) and 1308 (disposition of complaints).

In our opinion FOIA is co-extensive with the duty under PERA to provide information. Therefore, § 10002 (g)(8) excludes from the definition of public record only records that could be excluded from the duty to provide information in collective bargaining. That is a question of labor law to be determined by PERB. Indeed, we have no procedure for the necessary fact-finding, whereas PERB, Which is comprised of individuals who are “knowledgeable in the area of labor relations,” can subpoena witness and records and hold hearings. 14 Del. C. § 4006 . Moreover, should we attempt to make a factual finding in this case, we would be creating a parallel body of decisions to the PERB, which is not conducive to orderly labor relations, and which would encourage forum shopping.

2. The request for records concerning outside counsel .

*3 As we have previously determined, records relating to a public body’s expenditure of public funds are “clearly of a public nature[.]” Op. Att’y Gen. 10-IB06 , at 6 (Del. July 15, 2010). Given the substantial public interest in how public bodies spend the public’s money, records concerning expenditures should be disclosed. Otherwise, all FOIA requests concerning expenditures could be denied as arguably related to collective bargaining. Therefore the records requested concerning expenditures for outside counsel should be produced. However, the City does not have to make available any information that is privileged under 29 Del. C. §§ 10002 (g).

CONCLUSION

We conclude that records of expenditures for outside counsel must promptly be produced, subject to the exemptions for attorney-client or other privileged information. However, because of the desirability of there being a consistent body of Delaware labor law, we defer to PERB to determine whether the JAQ report must be disclosed, pursuant to PERA.

Sincerely,

Judy Oken Hodas

Deputy Attorney General

Approved:

Lawrence W. Lewis

State Solicitor

Footnotes

1
While FOIA refers throughout to “citizens,” restricting the rights created by FOIA to only citizens of Delaware has been held unconstitutional. Lee v. Minner , 458 F.3d 194 (2006) . Therefore, we will use the term “public” rather than “citizens.”

Del. Op. Atty. Gen. 10-IB07 (Del.A.G.), 2010 WL 3303364