Does a school board have to take a public vote before denying a parent's request, even if it never formally calls for a motion?

Official title

15-IB11 12/11/2015 FOIA Opinion Letter to Mr. Stephen Norman re: FOIA Complaint Concerning Brandywine School Board

Plain-English summary

An attorney asked the Brandywine School Board to expunge his client's student discipline record. The Board discussed the request during the executive session portion of its July 2015 meeting, listed on the agenda simply as a "Legal Matter," reportedly because of the attorney's litigation threats. No independent record showed the meeting minutes contained a formal vote on the expungement request. The day after the meeting, Board counsel emailed the attorney that "[g]iven the strength of the District's position it declines your client's proposal to clear his record." The attorney complained to the AG that the Board had effectively decided his client's request without ever taking a public vote.

The AG agreed a violation occurred, but took what it called a "practical view" of the statute: rather than asking only whether a formal "vote" happened, the AG asked whether the matter was actually "decided," even informally or by consensus. Because the Board sent a letter declining the request, a decision plainly had been made, whether during executive session or sometime after the meeting ended, and the public had no way to see how or when that decision was reached. The AG found no other FOIA problems with the meeting's notice, agenda, or executive session procedures, all of which were adequately handled. As a remedy, the AG directed the Board to either formally ratify its decision at a public meeting or reconsider the expungement request and vote on it publicly, suggesting the Board could protect the student's privacy by referring to the student by number or initials rather than by name.

Currency note

This opinion was issued in 2015. 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

If a public body never takes a formal vote, can it still violate Delaware's open meetings law by "deciding" something in private?

Yes, according to this opinion. The AG looked past the absence of a formal vote and asked whether the record showed the matter was actually decided, reasoning that FOIA's purpose is to let the public see how and when a decision gets made, not to let a body avoid that requirement by simply skipping a formal motion.

How could a school board handle a sensitive student-record request without violating either FOIA or federal student-privacy law?

The opinion suggests referring to the student by a number or initials during the public portion of the meeting, or simply announcing that a discussion occurred in executive session on a request for expungement and then holding the actual vote to accept or deny that request in public.

Does discussing a legal threat in executive session as a "Legal Matter" excuse a public body from ever taking a public vote on the underlying request?

No. The opinion found the executive session notice and procedure were fine on their own, but that a proper reason for closing part of a meeting does not eliminate the separate requirement that any resulting decision on public business be made and recorded publicly.

What can happen if a citizen challenges a public body's decision that was made without a public vote?

Here, the remedy was not to erase the underlying substantive decision, but to require the public body to either ratify it or hold a new vote in public. This shows that Delaware's FOIA enforcement often focuses on fixing the process going forward rather than automatically undoing what was decided.

Background and statutory framework

FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed" for a permitted reason, 29 Del. C. § 10004(a), and defines "public body" to include committees supported by public funds or charged with making recommendations, 29 Del. C. § 10002(c). A public body must vote in public to enter executive session, and "all voting on public business must take place at a public meeting and the results of the vote made public," 29 Del. C. § 10004(c). Meeting agendas must identify the issues a public body expects to discuss or act on, and disclose an intent to hold executive session, 29 Del. C. § 10002(a), for one of the permitted purposes listed in the statute, 29 Del. C. § 10004(b).

The opinion applies its own prior holdings, citing Del. Op. Att'y Gen. 06-IB12, Del. Op. Att'y Gen. 05-IB29, and Del. Op. Att'y Gen. 96-IB32, that consensus votes reached during executive session are not permitted, and reasons that the practical import of FOIA's public-voting requirement is to let the public discern how and when a matter gets decided, not merely to police the use of the word "vote." On the notice and executive-session procedure questions, the opinion relies on its own recently issued Del. Op. Att'y Gen. 15-IB10 and on the Delaware Court of Chancery's decision in Common Cause of Delaware v. Red Clay Consol. Sch. Dist. Bd. of Educ. for the rule that a public body need only disclose the general purpose of an executive session in its agenda, and that minutes describing the topics discussed are sufficient without further detail. On the interplay between FOIA and student privacy, the opinion notes that student discipline discussions may implicate the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its regulations, 34 CFR Part 99, which withhold federal funds from institutions that release personally identifiable information from "education records" without parental consent, 20 U.S.C. § 1232g(a)(4)(A), and that Delaware separately exempts pupil files from FOIA disclosure, 29 Del. C. § 10002(l)(1), § 10002(l)(6), and 14 Del. C. § 4111(a). The opinion found these privacy protections did not excuse the Board from taking a public vote, since the vote itself could have been taken without disclosing personally identifiable information.

Citations and references

Statutes:

• 29 Del. C. Ch. 100 (Delaware's Freedom of Information Act)
• 29 Del. C. §10005(e) (citizen petition to the Attorney General for a FOIA determination)
• 29 Del. C. § 10004(a) (meetings of public bodies must be open to the public)
• 29 Del. C. § 10002(c) (defines "public body" to include certain committees)
• 29 Del. C. § 10004(c) (all votes on public business must occur at a public meeting)
• 29 Del. C. § 10002(a) (agenda content requirements, including notice of executive session)
• 29 Del. C. § 10004(b) (permitted purposes for executive session)
• 20 U.S.C. § 1232g (Family Educational Rights and Privacy Act, FERPA)
• 34 CFR Part 99 (FERPA implementing regulations)
• 20 U.S.C. § 1232g(a)(4)(A) (defines "education records")
• 29 Del. C. § 10002(l)(1) (privacy exemption from FOIA disclosure)
• § 10002(l)(6) (exemption for records specifically exempted by statute)
• 14 Del. C. § 4111(a) (pupil files exempt from FOIA)

Cases:

• Common Cause of Delaware v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401 (Del. Ch. Dec. 5, 1995) (a public body need only disclose the general purpose of an executive session and its minutes need not detail more)

Source

• Landing page: https://attorneygeneral.delaware.gov/2015/12/11/15-ib11-foia-opinion-letter-to-mr-stephen-norman-re-foia-complaint-concerning-brandywine-school-board/
• Original PDF: not linked from landing page

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 15-IB11

December 11, 2015

VIA EMAIL

Stephen P. Norman, Esquire

The Norman Law Firm

303838 Vines Creek Rd., Unit 3

Dagsboro, DE 19939

[email protected]

Re: FOIA Complaint Concerning the Brandywine School Board

Dear Mr. Norman:

On August 26, 2015, the Delaware Department of Justice ("DOJ") received your letter complaint requesting our determination pursuant to the Freedom of Information Act, 29 Del. C. Ch. 100 ("FOIA"), of whether the Brandywine School Board (the "Board") violated the FOIA open meeting requirements in its consideration and decision regarding a student disciplinary matter. We treat your letter as a petition for a determination of whether a violation of FOIA has occurred or is about to occur. 29 Del. C. §10005(e). Our determination is set forth herein.

FACTUAL BACKGROUND[1]

In June 2015, Mr. Norman requested that a proposal to expunge a student's discipline record be brought before the Board at the July 20, 2015 meeting, if not before. According to counsel for the Board, the discussion about this requested expungement was not held before the July 20, 2015 scheduled Board meeting due to FOIA's open meeting requirements.

On July 20, 2015, the Board held a monthly school board meeting. Counsel for the Board has represented and Mr. Norman has not disputed that the notice and agenda for the public meeting were posted on the District website at least seven days in advance of the meeting per the requirements of FOIA. The Board also posted a separate attachment for the "Executive Session Agenda." The executive session agenda noted that the Board would discuss (i) Personnel Matters; (ii) Student Matters; and (iii) Legal Matter".

Counsel for the Board represents that the request regarding student record expungement was discussed under the heading of "Legal Matters" due to Mr. Norman's threats of litigation. The Board did not produce any independent evidence of such threats. The Board recorded minutes for both the July 20, 2015 executive session and regular session. According to the executive session minutes, the Board voted unanimously to enter executive session and discussed: 1) Personnel; 2) Negotiations; and 3) Student Matters before coming out of executive session. According to the regular session minutes, the Board voted in public on Personnel Matters and Student Matters as discussed in executive session.

On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, "Steve. Given the strength of the District's position it declines your client's proposal to clear his record."

ALLEGED VIOLATIONS

The Petition alleges that the Board violated FOIA in denying the request to expunge the student record without taking official action in regular session. The Petition also alludes to concerns regarding the issuing of agendas and general FOIA violations during the executive session but provides no specific complaints. In his Petition, Mr. Norman writes, "I have my concerns whether other violations of FOIA may have occurred in issuing the agenda and at the executive session itself." However, Mr. Norman has not identified any of these concerns with additional specificity.

BOARD'S Response to the Allegations

The Board argues that there was no vote in executive session but states that the Board discussed whether a motion should be made as to opening discussion with Mr. Norman regarding his client's request. The Board states that no motion was made in executive or regular session, and therefore, because no motion was made, the Board determined that it would not negotiate with Mr. Norman regarding his client's request.

RELEVANT STATUTE

"Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason]." 29 Del. C. § 10004(a). "Public body" includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making "reports, investigations or recommendations" to a public body. 29 Del. C. § 10002(c).

A public body must vote at a public meeting to move into executive session, and "all voting on public business must take place at a public meeting and the results of the vote made public." 29 Del. C. § 10004(c). Sections 10004(e) and (f) of Title 29 set out the requirements for meeting notices, agendas and minutes.

LEGAL ANALYSIS

The Board violated FOIA when it decided the expungement request.

FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting. See 29 Del. C. § 10002(a). If the public body intends to go into executive session, it must so indicate in the agenda. See id. Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public. Id. Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op. Att'y Gen. 06-IB12, Del. Op. Att'y Gen. 05-IB29, Del. Op. Att'y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.

The Board does not have any procedures for considering a student's request to expunge his or her record.[2] The process is discretionary. Counsel for the Board argues that there was no vote in executive session. The statute does use the term "vote," but we take a practical view and look at whether a matter was "decided," even if the body avoids a vote. The Board sent a letter "declining" a proposal; this acknowledges that a decision was made. Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over. In any event we cannot say that the decision was made publicly. We believe the import of the statute's language that "all voting on public business must take place at a public meeting and the results of the vote made public" is that the public should be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session. Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.[3]

The record does not support a finding that the Board committed any additional FOIA violation in connection with the notice or conduct of the July 20, 2015 meeting.

The Petition alleges that the Board may have committed other FOIA violations when issuing the agenda or conducting the executive session. As previously noted, the agendas for the executive and regular sessions were posted within the time statutorily mandated by FOIA. The Board provided sufficient notice for the executive session. The Board's description of the topics to be discussed in executive session was sufficient. See Del. Op. Att'y Gen. 15-IB10; See also Common Cause of Delaware v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401, at 4 (Del. Ch. Dec. 5, 1995). The Board was only required to disclose the purpose of the executive session in the agenda. Id. The Board did so. The Board voted to go into executive session and entered into executive session for one, or more, of the allowable reasons. See 29 Del. C. § 10004(b), Del. Op. Att'y Gen. 06-IB12. The minutes of the executive session are sufficient. Common Cause of Delaware, at 4. Based on the evidence provided, we find no additional FOIA violations in connection with the notice or conduct of the meeting.

REMEDIATION AND CONCLUSION

We find that the aforementioned Board action regarding a student's request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA. The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.

Very truly yours,

/s/ Joanna S. Suder

Joanna S. Suder

Deputy Attorney General

cc (via email): James McMackin, Esq., Counsel for Brandywine School Board

Approved:

/s/ Aaron Goldstein

Aaron Goldstein, State Solicitor

[1] The Factual Background Section of this Opinion refers to your communications as made by "Mr. Norman" for ease of future reference by third parties.

[2] See Brandywine School District Code of Conduct, available at http://www.brandywineschools.org/cms/lib04/DE01000691/Centricity/Domain/2100/code%20of%20conduct%202014.pdf.

[3] We are cognizant that discussions dealing with student records and student discipline may be protected under the Family Education and Privacy Act ("FERPA"). 20 U.S.C. § 1232g; 34 CFR Part 99. We have noted that "FERPA provides that federal funds will be denied to any educational entity that has a 'policy or practice' of releasing 'any personally identifiable information in education records' without the written consent from a minor student's parents." Del. Op. Att'y Gen. 10-IB10 (2010). "Education records" are any materials that "contain information directly related to a student" and that "are maintained by an educational agency or institution …." 20 U.S.C. § 1232g(a)(4)(A). Additionally, pupil files are exempt from FOIA pursuant to 29 Del. C. § 10002(l)(1), § 10002(l)(6) and 14 Del. C. § 4111(a). However, in the present case, the matter could have been voted on in regular session without disclosing personally identifiable information. This could be done by, for instance, referencing a number or initials to identify the student in regular session, or simply stating that a discussion was held during executive session regarding a request for expungement and then voting in regular session to accept or deny the request.