Can a Delaware county keep the details of an ongoing land-purchase negotiation out of its public meeting minutes?

Official title

17-IB59 11/20/2017 FOIA Opinion Letter to Mr. Daniel Kramer re: FOIA Complaint Concerning Sussex County Council

Plain-English summary

Daniel Kramer asked Sussex County Council for meeting minutes, and the Council largely complied but redacted a section of its November 15, 2016 executive session minutes concerning a specific land acquisition, explaining that the negotiation was still ongoing and disclosure would defeat the purpose of having discussed it privately. About a year later, Kramer asked for the unredacted version, arguing the issue was now old enough that the redaction should no longer apply. The Council denied that follow-up request too, again citing the ongoing negotiation.

The AG explained that Delaware FOIA does not require the AG's office or the courts to independently investigate or conduct an in-camera review of withheld executive-session material; the only question is whether the public body gave sufficient reasons to satisfy its burden of proof. Here, the Council's attorney represented that the land acquisition negotiation remained active and that releasing the redacted material would still harm the county's negotiating position, and the Council's response showed a correct understanding that the redaction is time-limited, lasting only as long as disclosure would actually defeat the executive session's purpose. Because the Council met that burden, the AG found no FOIA violation, while making clear the redaction would have to lift once the land deal is resolved or no longer confidential.

Currency note

This opinion was issued in 2017. 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

How long can a Delaware public body keep executive session minutes about a land deal secret?

Only as long as disclosure would defeat the lawful purpose of having held the executive session in the first place, and "no longer." Once negotiations conclude or confidentiality no longer serves a purpose, prior AG guidance indicates a requester can renew the request for the previously withheld minutes.

Does the AG independently verify a public body's claim that a negotiation is still ongoing?

Not through an investigation or in-camera review, according to this opinion. Delaware FOIA and recent Delaware Superior Court precedent (Flowers v. Office of the Governor) instead ask only whether the public body has provided sufficient reasons, including through its attorney's representations, to satisfy its burden of proof for withholding the information.

Can a county's attorney's factual statements about a negotiation's status be relied on by the AG?

Yes, according to this opinion, subject to the attorney's professional duty of candor to the body they represent under Delaware's Rules of Professional Conduct. The AG treated Sussex County's counsel's representations about the ongoing land acquisition as sufficient to satisfy the county's burden.

Does the passage of time by itself force disclosure of executive session minutes?

No, not under this opinion. The requester argued the year-old issue should no longer justify secrecy, but the AG focused on whether the negotiation was still active, not simply how much time had passed since the executive session was held.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, requires open meetings except for specific closed-session purposes, including "preliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property" under 29 Del. C. § 10004(b)(2). Public bodies must keep minutes of all meetings, including executive sessions, and make them public, but may withhold minutes or portions of them "so long as public disclosure would defeat the lawful purpose of the executive session, but no longer." 29 Del. C. § 10004(f). Delaware Superior Court's decision in Flowers v. Office of the Governor clarified that the AG's review of a withholding decision does not require independent investigation or in-camera review, only an assessment of whether the public body carried its burden of showing sufficient reasons for the withholding.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. §10005(e) (petition procedure for AG determination)
• 29 Del. C. § 10004(a) (open meetings requirement)
• 29 Del. C. § 10004(b)(2) (executive session for site acquisition negotiations)
• 29 Del. C. §10004(f) (minutes requirement; withholding only while disclosure would defeat the executive session's purpose)
• 29 Del. C. § 10004(h)(1) (15-business-day response requirement, as cited in this letter)
• 29 Del. C. § 10004(h)(2) (public body must state reasons for denial, as cited in this letter)
• Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017) (AG review asks whether the public body met its burden, not independent investigation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/12/04/17-ib59-11202017-foia-opinion-letter-mr-daniel-kramer-re-foia-complaint-concerning-sussex-county-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/12/Attorney-General-Opinion-No.-17-IB59.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB59

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB59

November 20, 2017

VIA U.S. MAIL & EMAIL

Daniel J. Kramer

8041 Scotts Store Rd

Greenwood, DE 19950

[email protected]

RE: November 2, 2017 FOIA Petition Regarding Sussex County Council

Dear Mr. Kramer:

We write in response to your correspondence, dated November 2, 2017, alleging that Sussex County Council violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your September 27, 2017 request for records. We treat your correspondence as a petition for determination pursuant to 29 Del. C. §10005(e) regarding whether the Council violated FOIA ("Petition"). We invited the Council to submit a written response to the Petition. We received the Council's response ("Response Letter") on November 14, 2017. For the reasons set forth below, we conclude that County Council did not violate FOIA as alleged.

BACKGROUND

On September 27, 2017, you requested "minutes" from the Council. On October 18, 2017, the Council provided you with records responsive to your request. The Council indicated that it was also mailing hard copies of the requested records as a courtesy. The Council also stated: "Please be advised, minutes for the Nov. 15, 2016, executive session are provided in redacted form, as the land acquisition matter discussed in that session remains an ongoing issue; releasing the contents of that discussion would negate the purpose of holding the executive sessions, which is permissible under 29 Del. Code §10004 (b)." Specifically, the content below the section heading "Land Acquisition, Land 2016-9" was fully redacted. On October 30, 2017, you requested a copy of an unredacted version of the minutes. That same day, the Council denied your request on the basis that releasing the redacted information would defeat the purpose of the executive session.

POSITIONS OF THE PARTIES

In your Petition, you appear to allege that the redactions are no longer proper, as "this issue is close to a year old." In its Response Letter, the Council notes that FOIA permits public bodies to convene an executive session to discuss land acquisition matters pursuant to 29 Del. C. §10004(b)(2).[1] The Council acknowledges that executive session minutes may be withheld from public disclosure only so long as public disclosure would defeat the lawful purpose of the executive session.[2] However, the Council, though its attorney, states that discussions regarding land acquisition 2016-9 are still ongoing and maintains that disclosure of the redacted information could be detrimental to the County's bargaining position.[3]

RELEVANT STATUTES

Delaware's FOIA provides that "[e]very meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (h) of [section 10004]."[4] Pursuant to 29 Del. C. §10004(b), a public body may call for an executive session closed to the public for one of nine specific purposes. For example, a public body may call for an executive session for "[p]reliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property."[5]

Delaware's FOIA also requires public bodies to "maintain minutes of all meetings, including executive sessions" and to "make such minutes available for public inspection and copying as a public record."[6] "Such minutes or portions thereof, and any public records pertaining to executive sessions conducted . . . may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose of the executive session, but no longer."[7]

When a public body receives a FOIA request, it "shall respond . . . as soon as possible, but in any event within 15 business days after the receipt thereof, either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed . . . ."[8] "If the public body denies a request in whole or in part, the public body's response shall indicate the reasons for the denial."[9]

DISCUSSION

As an initial matter, we note that Delaware's FOIA does not require this Office, or the courts, to conduct an investigation or an in camera review of records that a public body has withheld in response to a FOIA request.[10] Rather, as the Superior Court has recently made clear, FOIA only requires a determination of whether the Council provided sufficient reasons for withholding the redacted information to satisfy its burden of proof.[11]

Here, the Council provided a timely response to your request and, in that response, included a reason for its denial with respect to the redacted portion of the November 15, 2016 executive session minutes. Specifically, the Council indicated that the redacted portion related to a land acquisition which remains ongoing and that releasing the redacted portion of the minutes at this time would defeat the purpose of the executive session. In its Response Letter, and through its counsel,[12] the Council reiterated this position, but also made clear that it understands that it may withhold the redacted information only so long as disclosure would defeat the lawful purpose of the executive session.[13] Under the circumstances, we are satisfied that the Council has provided sufficient reasons for withholding the redacted information to satisfy its burden of proof.[14] Indeed, the Council applied a permissible basis for withholding the redacted information with a clear understanding of its scope.[15] As such, it is our determination that the Council did not violate FOIA as alleged.[16]

CONCLUSION

For the reasons discussed above, it is our determination that Council did not violate FOIA by withholding information relating to Land Acquisition 2016-9 from its response to your September 27, 2017 FOIA request.

Very truly yours,

Michelle E. Whalen

Deputy Attorney General

APPROVED BY:

Aaron R. Goldstein, State Solicitor

cc: J. Everett Moore, Esq. (via email)

[1] Response Letter at 1-2.

[2] Response Letter at 2 (citing 29 Del. C. §10004(f)).

[3] Response Letter at 2-3.

[4] 29 Del. C. § 10004(a).

[5] 29 Del. C. § 10004(b)(2).

[6] 29 Del. C. §10004(f).

[7] Id.

[8] 29 Del. C. § 10004(h)(1).

[9] 29 Del. C. § 10004(h)(2).

[10] Flowers v. Office of the Governor, 167 A.3d 530, 548-49 (Del. Super. 2017).

[11] Id. at 549.

[12] Pursuant to the Delaware Lawyers' Rules of Professional Conduct, "[a] lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall . . . conform to the provisions of Rules 3.3(a) through (c) . . . ." Del. Lawyers' R. Prof'l Conduct 3.9. Rule 3.3(a) provides that a lawyer shall not knowingly make a false statement of law or fact. The reasoning behind this duty of candor is that "[t]he decision-making body, like a court, should be able to rely on the integrity of the submissions made to it." Del. Lawyers' R. Prof'l Conduct 3.9 cmt. 1. As such, the factual representations made by Counsel to the Council regarding the status of the land acquisition at issue and the impact that releasing the information would have on negotiations with respect thereto serve to satisfy the County's burden.

[13] See Response Letter at 2.

[14] See Flowers, 167 A.3d at 549.

[15] See id.

[16] Of course, as the record demonstrates that the Council is aware, the redacted information "may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer." 29 Del. C. § 10004(f) (emphasis added); see also Del. Op. Att'y Gen. 02-IB27, 2002 WL 31867901, at *1 (Nov. 4, 2002) ("At some point after the County has purchased property, the minutes of prior executive sessions regarding the purchase of the property may become subject to FOIA because disclosure would no longer 'defeat the lawful purpose for the executive session.' At that time, you could renew your request.") (emphasis added) (citation omitted) (quoting 29 Del. C. § 10004(f)).