Can a Delaware city council go into executive session to get legal advice about zoning, then come back into open session and vote?

Plain-English summary

Lewes City Council was dealing with a controversial zoning question about the newly annexed Brittingham Parcel. The City's attorney prepared a privileged memo about the zoning, and Council went into executive session under FOIA's "documents excluded from public record" exemption to discuss it. After the executive session, Council voted in open session on the zoning. The agenda did not mention the Brittingham Parcel at all; it described the open-session item only as "possible action on matters discussed in Executive Session."

Two residents petitioned the AG, alleging three FOIA violations. The AG found:

1. The agenda's reference to "documents protected under FOIA" was a sufficient description of the executive-session purpose under § 10004(b)(6). That part was fine.
2. The executive session was not for a proper purpose. The City was effectively getting general legal advice in a closed session, which Delaware case law (Chemical Industry Council) has held you cannot do. The narrower executive-session basis for litigation strategy in § 10004(b)(4) wasn't met because the only evidence of "litigation" was a verbal comment from a developer's lawyer about "inviting litigation," and the City never explained how an open meeting would have hurt its litigation position.
3. The open-session agenda was inadequate. "Possible action on matters discussed in Executive Session" doesn't tell the public there's going to be a substantive vote on the Brittingham Parcel. The agenda failed FOIA's requirement of a "general statement of the major issues expected to be discussed."

The AG recommended that the City revisit the Brittingham Parcel zoning at a future public meeting with adequate notice and an explanation of the reasons for the vote. The AG cannot invalidate the vote itself.

Currency note

This opinion was issued in 2019. 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

Q: When can a Delaware public body go into executive session to talk with its lawyer?
A: Only when the strict requirements of § 10004(b)(4) are met: there must be a real and tangible threat of litigation based on objective factors (a demand letter, a notice of intent to sue, prior litigation between the parties), and an open meeting must have an adverse effect on the public body's litigation or bargaining position. A vague verbal comment about "inviting litigation" is not enough.

Q: Can the public body avoid the litigation-strategy test by using a different executive-session basis like (b)(6)?
A: No. The AG held that Delaware courts have rejected the idea that public bodies can sidestep § 10004(b)(4) by getting legal advice under the "documents excluded from public record" exemption. The Chemical Industry Council case (1994) is the leading Delaware authority for this principle.

Q: How specific does a meeting agenda have to be about expected action?
A: It must include "a general statement of the major issues expected to be discussed." The agenda doesn't need to recite the full statutory exemption or use elaborate detail, but it does need plain and comprehensible language. "Possible action on matters discussed in Executive Session" without naming the actual subject (Brittingham Parcel zoning) fails the test.

Q: Can the AG invalidate a vote that was taken in violation of FOIA?
A: No. The AG opinion is a determination of whether FOIA was violated; the only remediation the AG can recommend is corrective action like re-noticing and re-voting at a future public meeting. To get a vote actually invalidated, a challenger would need to go to court.

Q: What does "real and tangible threat" of litigation actually mean?
A: The opinion listed indicia: a written demand letter, a notice of threat to sue, or "previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims." A developer's lawyer saying changes would "invite" litigation is not on that list, and the City never explained how an open meeting would harm its litigation position.

Background and statutory framework

Delaware's open-meetings framework starts from a strong presumption: meetings of public bodies are open, and minutes must be kept. Executive sessions are exceptions, and § 10004(b) lists them: collective bargaining strategy, personnel matters, pending or potential litigation, certain confidential documents, and a few others. Each exception has its own factual prerequisites.

The interplay between the (b)(4) litigation-strategy exception and the (b)(6) documents-excluded exception is the recurring problem. Public bodies frequently want legal advice in private, but Delaware courts have been clear that FOIA generally trumps attorney-client privilege in the open-meeting context. Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Board (Del. Ch. 1994) put it bluntly: § 10004 is "a statutory public waiver of any possible [attorney-client] privilege of the public client in meetings of governmental bodies except in the narrow circumstances stated in the statute."

That narrow circumstance is litigation strategy. To invoke it, the public body must demonstrate not just that litigation is theoretically possible but that there's a real and tangible threat, and that an open discussion would actually hurt the bargaining or litigation position. The two-part test prevents public bodies from using a generic litigation rationale to discuss any matter behind closed doors.

The agenda-notice issue is a separate inquiry. The opinion held that "possible action on matters discussed in Executive Session," without naming the Brittingham Parcel, did not put the public on notice that a vote on that topic was planned, and so failed the requirement of a "general statement of the major issues expected to be discussed."

The recommended remediation (re-noticing and re-voting at a future public meeting with an explanation of reasons) is the AG's standard recipe for an unnoticed-vote violation. It's a "do it again the right way" approach that respects the AG's limited remedial authority while giving the public the transparency the statute was designed to provide.

Citations and references

Statutes:

• 29 Del. C. § 10004(b)(4) (executive session for litigation strategy)
• 29 Del. C. § 10004(b)(6) (executive session for exempt documents)
• 29 Del. C. § 10005(e) (petition for AG determination)

Cases:

• Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Board (Del. Ch.): FOIA waives attorney-client privilege in public-body meetings except in the narrow circumstances stated in the statute.

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/02/22/19-ib07-2-15-2019-foia-opinion-letter-to-mr-doug-spelman-and-mr-john-hurlock-re-foia-complaint-concerning-the-city-of-lewes/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB07.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB07

February 15, 2019

VIA EMAIL

Mr. Doug Spelman
Mr. John D.W. Hurlock
c/o [email protected]

RE: FOIA Correspondence Regarding the City of Lewes

Dear Mr. Spelman and Mr. Hurlock:

We write in response to your correspondence alleging that the City of Lewes ("City") violated the open meeting requirements of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your records requests. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that the City violated FOIA by holding an executive session for an improper purpose and by posting an insufficient agenda.

BACKGROUND

In 2018, the City approved the annexation of a certain parcel known as the Brittingham Parcel into the City, and the zoning classification of this Parcel then became a matter of dispute. On December 14, 2018, the City held a special meeting to discuss the zoning classification, and sometime thereafter, the Parcel developer's counsel contacted the City's attorney and in the course of their discussions, stated that any changes to the zoning would "invite litigation." Based on these events, the City's attorney prepared an attorney-client privileged memorandum for presentation at executive session. The City published an agenda for a January 7, 2019 meeting entitled "Executive Session," including an executive session to discuss "personnel issues and discuss documents protected under FOIA," an open session item for "possible action on matters discussed in Executive Session," and an open session item regarding a dredge pipeline. The agenda did not mention the Brittingham Parcel in any manner. At the meeting, the Council entered executive session and voted upon the zoning of Brittingham Parcel after coming back into open session.

You filed a Petition with this Office, asserting that the City violated the open meeting requirements of FOIA by providing improper notice of the executive session and by conducting an executive session for an improper purpose. The Petition noted other flaws in the process, including improper notice of the open session agenda items.

The City, through its counsel, submitted correspondence ("Response") countering two of these allegations, asserting only two issues were raised for this Office's determination. First, the City argued that the notice for the executive session on the agenda was adequate according to Delaware cases and this Office's precedent, notwithstanding Attorney General Opinion 12-IIB09. Second, the City argued that the executive session was for a proper purpose because the City's counsel presented an attorney-client privileged memorandum, which was exempt from disclosure under 29 Del. C. § 10004(l)(6).

In your Reply, you first clarified that the Petition raised three issues. In addition to the two issues that the City addressed, your Petition also raised the matter of whether the meeting agenda gave the public adequate notice of the open session items. Also, you contended that the true nature of the executive session was to discuss potential litigation, but the City failed to meet the standard to assert that exemption. Additionally, you argued that the agenda was improperly titled as an Executive Session, despite the open session items and that the expected action on the Brittingham Parcel was insufficiently noticed.

DISCUSSION

We find as an initial matter that your Petition sufficiently raises three issues: 1) whether the agenda for the January 7, 2019 executive session adequately provided notice to the public; 2) whether the executive session was held for a proper purpose under FOIA; and 3) whether the agenda for the open session items adequately provided notice to the public of the matters for discussion. We address each argument in turn below.

Agenda Item for Executive Session

You alleged that the agenda's notice for an executive session to discuss "documents protected under FOIA" was insufficient. This agenda item pertains to 29 Del. C. § 10004(b)(6) which allows an executive session to discuss "the content of documents, excluded from the definition of 'public record' in § 10002 of this title where such discussion may disclose the contents of such documents." Additional detail or an exact recitation of the statutory language is not required. Thus, we conclude that the "documents protected by FOIA" is sufficiently similar to the permissible reason in 29 Del. C. § 10004(b)(6) and find that the City did not violate FOIA by using this language to refer to 29 Del. C. § 10004(b)(6).

Purpose of the Executive Session

Next, we consider whether 29 Del. C. § 10004(b)(6) was a proper purpose for this executive session, which is a separate inquiry. "A determination that a public body sufficiently noticed its intent to hold an executive session under FOIA does not confirm that the executive session itself was a proper one." In its Response, the City explained the executive session was held to discuss an attorney-client privileged memorandum with its attorney regarding the Brittingham Parcel's zoning. In Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Board, the Court expressly rejected an expansive view of 29 Del. C. § 10004(b)(4) which would permit a public body to receive "legal advice" in an executive session. The Court stated that the exemption in 29 Del. C. § 10004(b)(4) is narrowly construed to prevent a broader interpretation from swallowing up the "open meeting" rule. Our Office followed the Court's view in subsequent decisions, finding that "FOIA is a statutory public waiver of any possible [attorney-client] privilege of the public client in meetings of governmental bodies except in the narrow circumstances stated in the statute" and the public body is not permitted to "hold any executive session to receive legal advice about any issue or matter under discussion so long [as] it had not yet taken a stand or reached a conclusion about the issue." It continues to be our view that FOIA imposes certain qualifications on the scope of attorney-client privilege arising in the public meeting context. We believe that the same view of attorney-client privilege applies here, and the City may not circumvent the requirements of 29 Del. C. § 10004(b)(4) by discussing legal advice in the context of an attorney-client privileged memorandum under 29 Del. C. § 10004(b)(6). Any executive session involving legal advice must meet the 29 Del. C. § 10004(b)(4) requirements.

We next determine whether the executive session was nonetheless properly held under 29 Del. C. § 10004(b)(4). This exemption under 29 Del. C. § 10004(b)(4) allows a public body to meet in executive session for strategy sessions with respect to collective bargaining or pending or potential litigation, "but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." The "potential litigation exception for executive session applies only when there is a 'realistic and tangible threat of litigation' based on 'objective factors.'" "Some indicia of such a situation might include a written demand letter, notice of threat to sue, or 'previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims.'" The City presented no explanation or evidence to support 29 Del. C. § 10004(b)(4), other than the mention of a verbal statement about "inviting litigation" by the developer's counsel. Even if we were to find that this statement was a sufficiently objective indicia of a realistic and tangible threat of litigation, the City has not addressed how its discussions that occurred in executive session would have an adverse effect on their eventual litigation position. As the City has not met its burden with regard to 29 Del. C. § 10004(b)(4), we must find that the January 7, 2019 executive session was improper.

Open Session Agenda Items

Finally, you contend that the January 7, 2019 agenda was improper with respect to the open session items. You first argued that the agenda created confusion and was inadequate notice of the two open session items. FOIA requires that the agenda include "general statement of the major issues expected to be discussed." To this end, the Court of Chancery has suggested that an agenda should be worded in "plain and comprehensible language." Here, the title of the Agenda is an "Executive Session," but major issues of public business were also planned for open session discussion. Second, you argued that the agenda item of "possible action on matters discussed in Executive Session" provides the public with insufficient notice of this potential action. We agree; the public was not on notice that a vote or action on the Brittingham Parcel was potentially planned for that meeting. Thus, we find that the agenda was flawed because it provided insufficient notice of the open session items.

As remediation, we recommend that the City appropriately notice and address the topic of the zoning of the Brittingham Parcel at a future public meeting, including its reasons for the vote. If you wish to pursue invalidation of the vote, that remedy is not within the limits of our authority under the statute.

CONCLUSION

It is our determination that the City has not violated FOIA by citing to its reason for the executive session in the January 7, 2019 meeting agenda. However, we conclude that the City violated FOIA by providing an insufficient agenda of the open session items and by failing to meet its burden to show that the executive session was for a proper purpose under 29 Del. C. § 10004(b)(4). As such, we recommend that the City appropriately notice and address the topic of the zoning of the Brittingham Parcel at a future public meeting, including its reasons for the vote.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Aaron R. Goldstein

Aaron R. Goldstein

Chief Deputy Attorney General

cc:

Glenn Mandalas, Esq. Attorney for the City of Lewes (via email)