Can a school board require a newspaper's records request to be made in writing to its attorney, and can it discuss a controversial charter school application in closed session?

Official title

97-IB14: FOIA Complaint Against Red Clay Consolidated School District Board of Education

Plain-English summary

The News Journal complained that the Red Clay Consolidated School District Board of Education mishandled a controversial vote to charter a Montessori school in three ways: making its reporter wait until after the vote to see an amended contract with the school, requiring a follow-up records request to be submitted in writing to the board's outside counsel rather than answered over the phone, and holding a closed executive session on the charter application without releasing its minutes.

The Attorney General cleared the board on the first two points. Getting the contract before the meeting concluded, even if after the vote, satisfied FOIA's "reasonable access" standard, since the Act promises easy access, not instantaneous access on demand. Requiring records requests in writing and routed through counsel was likewise fine; FOIA doesn't guarantee citizens the right to records the moment they ask, only within a reasonable time, and channeling a request through counsel caused no real delay here since a response came within 48 hours. On the executive session, the board explained it needed to weigh a Montessori charter application against the threat of a lawsuit from a state legislator and other opponents, a purpose the Act specifically allows when open discussion could hurt the board's litigation position; given the intense, widely publicized controversy over the charter, the AG agreed that discussing the legal issues privately with counsel was justified. But it drew the line at keeping the session's minutes secret too: since disclosing them wouldn't reveal any actual litigation strategy or legal advice, FOIA's exemption for executive-session records didn't apply, and the board had to hand them over. The opinion also flagged, as a separate and forward-looking concern, that the board's practice of announcing an executive session for one location and the "real" public meeting for a different location and time risked misleading citizens about when and where they could watch the board vote to go behind closed doors, and directed the board to fix its notice format going forward, even though it declined to undo any of the board's already-moot charter decision.

Currency note

This opinion was issued in 1997. 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: Can a public body require a records request to be submitted in writing to its lawyer instead of answering a phone call on the spot?
A: Yes, according to this opinion. FOIA doesn't guarantee an instant answer or a particular method of request, and requiring a written request routed through counsel was fine here since it produced a response within 48 hours.

Q: When can a school board discuss a controversial decision behind closed doors with its lawyers?
A: When it reasonably believes an open discussion would hurt its position in pending or potential litigation. The opinion found the board's charter-school decision, facing a real threat of a lawsuit amid intense public controversy, met that standard.

Q: If an executive session is properly held, does that mean its minutes stay secret too?
A: Not automatically. The opinion held that executive-session minutes are only exempt from disclosure to the extent releasing them would defeat the session's lawful purpose, and ordered the board's minutes released because they didn't reveal any litigation strategy or legal advice.

Q: Can vague or confusing meeting notices void a public body's vote?
A: Not by themselves, at least not here. The opinion found the board's confusing practice of announcing an executive session at one location and the "real" public meeting elsewhere was potentially misleading and needed fixing, but didn't rise to the level of affecting substantial public rights enough to invalidate the board's vote, especially once the underlying deal fell apart on its own.

Background and statutory framework

The complaint arose from the board's June 2, 1997 meeting approving a charter for the Montessori Community School, where a reporter received a requested contract only after (though still during) the meeting, a subsequent records request was routed to counsel, and the board held an unrecorded executive session addressing the threat of litigation over the charter. Applying 29 Del. C. Section 10003(a)'s "reasonable access" standard, and citing Brent v. Paquette on a public body's discretion to require an appointment or written request without violating access rights, and Mayock v. INS on courts being sensitive to a requester's actual need for speed, the AG found no violation in either the contract timing or the written-request rule. On the executive session, applying 29 Del. C. Section 10004(b)(4)'s exemption for litigation-strategy sessions and Common Cause of Delaware v. Red Clay Consolidated School District Board of Education on the board's burden to justify a closed session, the AG found the session justified given the documented, intense public controversy and litigation threat surrounding the charter application. Citing Chemical Industry Council, Inc. v. State Coastal Zone Industrial Control Board on the narrow scope of the executive-session minutes exemption under Section 10004(f), the AG ordered the minutes disclosed since they revealed no protected strategy. On the notice format, applying Section 10004(c) and (e)(2) and Ianni v. Department of Elections of New Castle County's "substantial public rights" standard for invalidation, along with Beebe Medical Center v. Certificate of Need Appeals Board on de minimis violations amid full public discussion, the AG found no basis to void the board's action, particularly once the underlying Montessori arrangement collapsed on its own.

Citations and references

Statutes:

• 29 Del. C. Section 10001, declaration of policy on easy public access to records
• 29 Del. C. Section 10003(a), reasonable access requirement for public records
• 29 Del. C. Section 10004(a), general open-meetings requirement
• 29 Del. C. Section 10004(b)(4), executive session exemption for litigation strategy sessions
• 29 Del. C. Section 10004(c), requirement for an open vote to enter executive session
• 29 Del. C. Section 10004(e)(2), notice and agenda requirements for meetings
• 29 Del. C. Section 10004(f), minutes requirement, including the limited exemption for executive-session minutes

Cases:

• Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, 1995 WL 733401 (Del. Ch. Dec. 5, 1995), on the burden to justify an executive session
• Chemical Industry Council, Inc. v. State Coastal Zone Industrial Control Board, 1994 WL 274295 (Del. Ch. May 19, 1994), on the narrow scope of the executive-session minutes exemption
• Brent v. Paquette, 567 A.2d 976 (N.H. 1989), on a public body's discretion to require an appointment or written request
• Ianni v. Department of Elections of New Castle County, 1986 WL 9610 (Del. Ch. Aug. 29, 1986), on the "substantial public rights" standard for invalidation
• Beebe Medical Center v. Certificate of Need Appeals Board, 1995 WL 465318 (Del. Super. June 30, 1995), on de minimis violations amid full public discussion
• Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989), on considering a requester's need for prompt access

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/07/29/97-ib14-foia-complaint-against-red-clay-consolidated-school-district-board-of-education/

Original opinion text

Civil Division – New Castle County

July 29, 1997

VIA HAND-DELIVERY

Richard G. Elliott, Jr., Esquire

Richards, Layton & Finger

One Rodney Square

P.O. Box 551

Wilmington, DE 19899

Re: Freedom of Information Act Complaint Against

Red Clay Consolidated School District Board of Education

Dear Mr. Elliott:

Pursuant to 29 Del. C. Section 10005(e), the Department of

Justice makes the following written determination whether a

violation of the Freedom of Information Act (“FOIA”) has

occurred.

On June 18, 1997, we received your letter of complaint. By letter

dated June 20, 1997, we asked the Red Clay Consolidated School

District Board of Education (“Red Clay”) to respond within ten

days to your allegations that Red Clay violated the public

records and open meeting requirements of FOIA. We granted Red

Clay’s request for an extension of time to respond to your

complaint until July 11, 1997. We then provided you with a

further opportunity to respond in writing, and received your

supplemental response on July 14, 1997.

On July 15, 1997, we asked Red Clay’s counsel to provide us with

a copy of the minutes of the executive session on June 2, 1997

for our in camera review. We received the minutes on July 16,

1997. Based on the complaint (and documents attached), Red Clay’s

response, your reply, and our review of the minutes, we make the

following written determination.

A. Public Records

Section 10003(a) of FOIA provides: “All public records shall be

open to inspection and copying by any citizen of the State during

regular business hours by the custodian of the records for the

appropriate public body.” 29 Del. C. Section 10003(a). Section

10003(a) further provides that all citizens shall have

“[r]easonable access to and facilities for copying of these

records . . . If the record is in active use or in storage and,

therefore, not available at the time a citizen requests access,

the custodian shall so inform the citizen and make an appointment

for said citizen to examine such records as expediently as they

may be made available.”

The complaint alleges three violations of the public records law:

(1) Red Clay did not provide a copy of an amended contract with

the Montessori School at a public meeting on June 2, 1997; (2)

Red Clay required The News Journal to make a written request to

Red Clay’s counsel before providing access to other public

records requested on June 3, 1997; and (3) Red Clay withheld the

minutes of the executive session held on June 2, 1997. Since the

third issue may turn on the interpretation and application of the

open meeting law, we will address it subsequent to our discussion

of whether Red Clay went into executive session for a purpose

authorized by statute.

1. The Montessori School Contract

The complaint states that at 4:30 p.m. at the June 2, 1997

meeting “a reporter for the News Journal requested access to an

amended contract between the Red Clay Consolidated School

District and the Montessori Community School, Inc. relative to a

charter application that was being voted on by the Board at that

meeting . . . .” The complaint first states that “[s]uch access

was denied,” but then states that “access was provided after a

vote on the contract had been taken.” The News Journal contends

that the document “should have been provided before the vote.”

In its response, Red Clay states that the contract “was promptly

provided to its reporter at the very meeting at which access was

sought . . . .” Red Clay also contends that the document

requested “was in ‘active use’ until the voting on it was

complete, within the meaning of Section 10003(a).” We do not have

to decide whether the document was in “active use” for purposes

of FOIA since we find that Red Clay did not deny The News Journal

access to this public record.

FOIA requires that citizens have “reasonable access” to inspect

and copy public records, but does not define “reasonable access.”

In construing that term, this Office has made previous reference

to the federal Freedom of Information Act, 5 U.S.C. Sections

550-559, which generally requires a ten-day response to requests

for public records. See 5 U.S.C. Section 552(a)(6)(A)(i). The

federal law only requires the agency to “respond” to the request,

that is, to make a decision whether it will or will not comply

(as opposed to actually producing the documents requested). If

there are “unusual circumstances,” the federal agency may have

longer to respond. Id. Section 552(a)(6)(B).

A public body in Delaware “should, within ten (10) days after the

receipt of a definitive request, issue a written determination to

the requestor stating which of the requested records will, and

which will not, be released and the reasons for any denial of a

request.” Att’y Gen. Op., 91-IO03 (Feb. 1, 1991). This time may

be extended for good reason, for example: “(1) When there is a

need to search for and collect the requested records from field

facilities or other establishments that are separate from the

office processing the request; (2) When there is a need to search

for, collect, and examine a voluminous amount of separate and

distinct records which are demanded in a single request; or (3)

When there is a need for consultation, which shall be conducted

with all practicable speed, with another agency or with agency

counsel.” Id. The touchstone to the public access analysis is the

modifier “reasonable,” which is tested under the circumstances of

the particular case. See Att’y Gen. Op. 94-IO30 (Oct. 19, 1994)

(unreasonable for the town not to comply with a request for

public records for ten weeks).

The News Journal admits that it received a copy of the contract

it requested at the very meeting during which it requested the

document. We do not construe the “reasonable access” requirement

of FOIA to mean that a public body must provide access, on

short-notice demand, at any time or place. The FOIA Declaration

of Policy states that citizens should have “easy access” to

public records. 29 Del. C. Section 10001. It does not say that

they must have instantaneous access.

Of course, there may be circumstances where a public body should

give priority to requests for public records. “Courts have been

sensitive to the context of FOIA requests and to the plaintiff’s

need for the information, and they have expected that the

administrative procedures would take these needs into account.”

Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989) (public

records needed to defend against imminent deportation). The News

Journal apparently wanted to see a copy of the amended contract

to better observe the discussion at the meeting on June 2. But we

do not find that the circumstances were so compelling as to

require Red Clay to provide a copy of the contract upon first

demand at an open public meeting, especially since Red Clay

provided The News Journal with a copy of the contract before the

meeting concluded.

2. Minutes of School Board Meetings

On June 3, 1997, a reporter for The News Journal made a telephone

request for minutes of certain meetings of the Red Clay School

Board. The attorney for the School Board asked that the request

be put in writing “so that there would be no mistake as to the

documents requested” and “to avoid any misunderstanding that

could occur.” The News Journal takes the position that FOIA does

not require requests for public records to be made in writing.

FOIA is silent as to whether a public body can require a citizen

to make a written request to inspect and copy public records

before honoring the request. It is within the discretion of the

public body to honor a verbal request for public documents. See

Att’y Gen. Op. 96-IB13 (May 6, 1996) (“a public agency can

certainly respond to a request by telephone”). But if a public

body chooses to require that the request be made in writing, or

that such writing be directed to its counsel, then that, in

itself, does not amount to a violation of the public records law.

In Brent v. Paquette, N.H. Supr., 567 A.2d 976 (1989), a citizen

sued alleging that he was denied access to public records by the

school superintendent, who required that he make an appointment

first. The citizen argued that the New Hampshire law guaranteed

him the right to inspect public records during regular business

hours at the premises of the public body, and therefore he had a

right to see any public document upon demand. The New Hampshire

Supreme Court did not agree. “[A]n appointment does not prevent a

citizen from inspecting public records,” but only assures “the

‘smooth and efficient functioning of the bureaucracy in providing

public information.”‘ 567 A.2d at 980. “While . . . citizens are

entitled to inspect public records during business hours and at

business offices, [the statute] does not indicate that citizens

have the unfettered right to review the records in any quantity

and wherever kept immediately upon demand.” 567 A.2d at 981. The

court also rejected the citizen’s argument that any restriction

on access to public records was contrary to the purpose of the

statute and the public’s right to know.

[R]equiring citizens to arrange a mutually convenient time to examine public records perpetuates the underlying purpose of the statute . . . ‘to ensure . . . the greatest possible public access to the actions, discussions, and records of all public bodies . . . .’ [C]alling ahead to arrange a time to review particular documents assures citizens that they will be able to examine the records soon after they arrive at the office, and that they will not be told either to wait an indeterminate amount of time for someone to help them, or to come back later when the office is not so busy. Likewise, our public offices will be able to function more smoothly and efficiently if the keepers of the records can plan their days around pre-arranged appointments, and not be forced to interrupt their work whenever a citizen “drops by” to inspect a public record.

567 A.2d at 981-82.

Requiring a written request does not burden a citizen’s right of

reasonable access to public records any more than the appointment

requirement in Brent. Further, there is little, if any,

additional burden in requiring that the request be addressed to

the public body’s counsel, as opposed to the custodian of the

records. The News Journal complains that this can result in

unreasonable delay since Red Clay’s counsel is in Philadelphia.

In this age of facsimile and computers and law firms with

multiple branch offices, we think this concern is de minimis. In

any event, referring the records request to counsel did not

result in unreasonable access since the response from Red Clay’s

counsel was made within 48 hours of The News Journal’s request.

. B. The Executive Session

1. Purpose

FOIA requires that “[e]very meeting of all public bodies shall be

open to the public except those closed pursuant to subsections

(b), (c), (d) and (g) of this section.” 29 Del. C. Section

10004(a). Subsection (b) authorizes a public body to go into

executive session for nine purposes. One of those purposes is

for: “Strategy sessions, including those involving legal advice

or opinion from an attorney-at-law, 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; . . . .” 29 Del. C.

Section 10004(b)(4).

Red Clay states that it went into executive session to meet with

its attorneys to discuss a possible lawsuit over the Montessori

School charter. According to Red Clay, “the Board was threatened

with litigation by opponents of the [sic] Phil Clothier [sic],

State Legislator, and others, who vowed to sue Red Clay if it

approved a pending Montessori charter school application. The

Board therefore called the executive session to evaluate the

potential litigation and to determine Red Clay’s alternatives to

avoid litigation on that issue. Legal counsel to the Board was

present, and without revealing the advice rendered, which is

attorney-client privileged, Red Clay was concerned what its

alternatives would be in approving the application, disapproving

the application, or offering a modification which potentially

could avoid litigation. Alternatively, Red Clay was interested in

the soundness of its litigation position.”

A public body bears the “burden of proving that its action was

justified when the propriety of an executive session is

challenged.” Common Cause of Delaware v. Red Clay Consolidated

School District Board of Education, Del. Ch., 1995 WL 733401, at

p. 4 (Dec. 5, 1995) (Balick, V.C.) (citing 29 Del. C. Section

10005). Unlike the Chancery Court in Common Cause, we do not have

the benefit of depositions of School Board members as to what was

discussed at the executive session on June 2, 1997. We have

reviewed the one-page minutes of the executive session, which

indicate that two attorneys for Red Clay were present at the

executive session and that legal matters were discussed. Counsel

for Red Clay has confirmed that the executive session on June 2,

1997 was not tape-recorded.

In Common Cause, Vice Chancellor Balick observed that “[t]here is

a practical reason” to keep more detailed minutes of executive

session in the event there is litigation and the purpose of the

executive session is challenged. 1995 WL 733401, at p. 4. But

FOIA “neither says that the subjects discussed must be summarized

nor attempts to define how specific such a summary should be.

Although plaintiffs are undoubtedly correct that a more detailed

contemporaneous record of the subjects discussed would make it

easier to confirm that a public body has kept within prescribed

limits on executive sessions, I cannot conclude that there is a

clearly implied statutory requirement to summarize the subjects

discussed with any degree of specificity in the minutes of

executive sessions.” 1995 WL 733401, at p. 4.

In Common Cause, there was no dispute that litigation (the

federal desegregation lawsuit) was pending. The issue was whether

the subjects discussed in executive session would have an adverse

effect on Red Clay’s position in that litigation. FOIA, however,

also authorizes a public body to go into executive session to

receive legal advice from an attorney with respect to “potential”

litigation, if “an open meeting would have an adverse effect on

the bargaining or litigation position of the public body; . . .

.” 29 Del. C. Section 10004(b)(4).

In Common Cause, the Chancery Court found that an open meeting

would have an adverse effect on the Board’s litigation position

in the desegregation case. “At the time of the April meeting, Red

Clay was seeking the State Board’s support of the open enrollment

plan and was trying to meet the deadline for filing a motion to

modify the federal court’s decree. . . The public was intensely

interested and deeply divided on open enrollment and unitary

status. The issues in question required the Board to consider

proposed changes and arguable problems in the plan. The Board

could reasonably conclude that open discussion of those issues

would have an adverse effect on the Board’s pending motion

seeking court approval of the plan.” 1995 WL 733401, at p. 2.

The Montessori School charter was the subject of extensive

coverage in the local media. See, e.g., The News Journal, May 19,

1997 (“Red Clay Eyes Montessori”); May 21, 1997 (“Montessori

Approval Looks Likely”); May 22, 1997 (“Red Clay Debates

Montessori School”); May 23, 1997 (“Montessori Approval Raises

Money Issues”). The article that appeared on May 23 noted that

critics “question whether tuition-based preschool programs are

legal in a charter school,” and that Representative Philip D.

Cloutier (R-Heatherbrooke) was planning “to ask the state

attorney general’s office to rule on the issue.” In a News

Journal article on June 2, 1997, the headline reported that the

Montessori charter “Plan May Break Delaware Law.” Representative

Cloutier was quoted: “Red Clay is trying to find some means to

accomplish what the statute says they can’t do . . . They are

desperately trying to find a way to salvage a good idea, but it

just happens to be illegal.”

At the public meeting on June 2, there was “overwhelming

opposition from about 50 community residents and staffers who

shouted and railed against the proposal.” The News Journal, June

3, 1997. The public was obviously interested and divided on the

issue of a charter school. Critics claimed that the proposal

would violate state law by charging tuition. Under these

circumstances, we find that Red Clay could reasonably conclude

that open discussion with its attorneys of the legal issues

surrounding the charter application would have an adverse effect

on the Board’s position in potential litigation challenging the

legality of the charter school.

2. Minutes of Executive Session

FOIA exempts from disclosure “minutes or portions thereof, and

any public records pertaining to executive sessions conducted

pursuant to this section . . . .” 29 Del. C. Section 10004(f). In

Chemical Industry Council, Inc. v. State Coastal Zone Industrial

Control Board, Del. Ch., 1994 WL 274295 (May 19, 1994) (Jacobs,

V.C.), the Board invoked this exemption to withhold tape

recordings of an executive session in which the Board discussed

(though not exclusively) potential litigation. Vice Chancellor

Jacobs emphasized that this exemption applied only “‘so long as

public disclosure would defeat the lawful purpose for the

executive session'” (quoting Section 10004(f)), and ordered the

Board to produce the tapes after redacting “those portions that

specifically concern the Board’s litigation strategies.” 1994 WL

274295, at p. 13.

In reviewing the minutes of the executive session on June 2,

1997, we do not find that disclosure “would defeat the lawful

purpose for the executive session” by revealing any details about

Red Clay’s litigation strategy or the advice received from

counsel. Accordingly, we direct Red Clay to produce to The News

Journal the minutes of that executive session.

The News Journal also contends that on other occasions Red Clay

has “made improper use of the litigation exception to hold

executive sessions (particularly as to charter school

applications), when no legitimate threat of litigation exists . .

. .” Attached to the complaint are copies of the notices for

meetings on April 16, May 19, and May 21, 1997, which state that

the Board will hold an executive session concerning “charter

school applications” or “the Montessori charter application.”

Again, we are limited in our ability to know what was actually

discussed at those meetings bcause of the lack of specificity in

the minutes. Controversy surrounding charter schools, however,

has continued since the General Assembly enacted the Charter

School Act of 1995. See 1995 Del. Laws ch. 179 (approved July 10,

1995). This controversy was particularly intense in the months

leading up to the approval of the Montessori School charter

application by Red Clay on May 22, 1997. Accordingly, we find

that Red Clay reasonably invoked the potential litigation

exception for executive session at the April and May meetings.

C. Procedure For Going Into Executive Session

The public notice of the June 2, 1997 meeting of the Red Clay

School Board stated that the Board “will meet on Monday, June 2,

1997 at 3:00 p.m. This meeting, the executive session, will be

held at the administrative offices building, 1400 Washington

Street, Wilmington. The public meeting will take place at Warner

Elementary School, 820 West 19th Street, at approximately 4:30

p.m.”

The News Journal contends that “[n]o public notice was given that

the Board intended to convene a public meeting on June 2, 1997,

for the purpose of conducting a vote on whether to hold an

executive session, as is required under 29 Del. C. Sections

10004(c) and (e)(2). . . . As such, the Notice was drafted in

such a way as to discourage or thwart public attendance at the

Board’s meeting at 3:00 p.m. on June 2, 1997. The Notice further

reflects the fact that the Board had pre-determined its intention

to hold an executive session at 3:00 p.m. on June 2, 1997,

thereby obviating any utility or significance of holding a public

meeting and vote on the subject.”

Red Clay responds that a quorum of the School Board “convened in

public session at three p.m. and immediately moved to go into an

executive session. Once the motion was made and seconded and a

vote taken, the Board went into executive session, where it

remained until the conclusion of that meeting.” As for the notice

of executive session, Red Clay explains that “[t]he Board’s

notices of meetings are worded so as to put the public on notice

that the Board intends to hold an executive session immediately

after the public meeting is convened, so that the public does not

wait outside the doors for an hour, hour and one-half, or two

hours, while the executive session is completed. The Board’s

notice is required to, and did, notify the public of its intent

to go into an executive session.”

Section 10004(e)(2) of FOIA requires all public bodies to give

“public notice of their regular meetings and of their intent to

hold an executive session closed to the public, at least 7 days

in advance thereof. The notice shall include . . . the dates,

times and places of such meetings; . . . .” Section 10004(c)

provides that “[t]he vote on the question of holding an executive

session shall take place at a meeting of the public body which

shall be open to the public, and the results of the vote shall be

made public and shall be recorded in the minutes.”

The News Journal questions whether Red Clay gave adequate notice

of the executive session since the notice suggested that the

public was only invited to a later meeting of the School Board at

a different location. But there is no evidence that any member of

the public was denied the right to attend the meeting at 3:00

p.m. to watch the Board vote in public to go into executive

session.

In Att’y Gen. Op. 94-IO08 (Feb. 25, 1994), a city council moved

to “adjourn” a public meeting in order to go into executive

session. This Office found no violation of the open meeting law

because nothing in the complaint “indicates either explicitly or

implicitly that members of the public were somehow misled by this

order of business into leaving the regular meeting so that the

Council could somehow meet secretly to conduct its business.”

Similarly, we find nothing in The News Journal’s complaint to

show that citizens did not attend the start of the 3:00 p.m.

meeting because they were misled by the public notice posted for

the meeting.

Nevertheless, we see some potential for public confusion under

the format currently used by Red Clay for giving notice of its

meetings, particularly in holding the executive session at a

different location from the portion of the meeting open to the

public. In the future, Red Clay should make it clear that a

single public meeting open to the public will be held, and that

during the meeting the Board may vote to go into executive

session for a reason permitted by statute. Likewise, the notice

should be clear as to the location of the meeting (or parts

thereof) so that citizens can then choose whether to watch the

public vote on going into executive session, or to arrive later

at a different location after the executive session is concluded.

The News Journal asks this Office “for an opinion that, as a

result of the Board’s above-detailed violations of FOIA, all

actions taken by the Board (as set forth herein) are null and

void.” At most, the notices for the June 2 meeting might have

technically violated the act. Under these circumstances, we think

it inappropriate to declare invalid any action taken by Red Clay

at the June 2 meeting.

The remedy of invalidation “is a serious sanction and ought not

to be employed unless substantial public rights have been

affected and the circumstances permit the crafting of a specific

remedy that protects other legitimate public interests.” Ianni v.

Department of Elections of New Castle County, Del. Ch., 1986 WL

9610, at p. 7 (Aug. 29, 1986) (Allen, C.). We do not believe that

“substantial public rights” were impaired as a result of Red

Clay’s form of notice of the executive session on June 2, 1997.

Following the executive session, there was considerable

discussion and debate in the portion of the meeting open to the

public, and the Board members unanimously agreed to locate the

Montessori School at Shortlidge Elementary School. We find the

circumstances similar to those in Beebe Medical Center v.

Certificate of Need Appeals Board, Del. Super., 1995 WL 465318

(June 30, 1995) (Terry, J.), aff’d, Del. Supr., 1996 WL 69799

(Jan. 29, 1996), where the court held: “[T]his is a case where

there was ample input from the applicants and the public; where

there was a full public discussion; and where any violation of

the FOIA was de minimis when taken in context with the entire

process.” 1995 WL 465318, at p. 6.

In any event, the issue of whether to void an action taken in

violation of the open meeting law is now moot. As reported in The

News Journal on July 17, 1997, the contract proposal between the

Montessori School and Red Clay “has fallen apart,” and “‘[t]he

proposal approved by the [school] board is now null'” (quoting

William E. Manning, President of the Red Clay School Board).

The remedial action we have directed is prospective only, to

address the potential for violating the notice requirements of

FOIA that exists in the form of notice used by Red Clay for its

meetings. Other public bodies that use the same or similar form

of notice are cautioned that they could be subject to heightened

scrutiny under FOIA if they do not clarify their notices along

the lines recommended by this Office.

Conclusion

For the foregoing reasons, we determine that Red Clay did not

violate the public records requirements of FOIA by: (1) producing

a copy of the amended contract with the Montessori School after

the vote but at the public meeting on June 2, 1997; (2) requiring

that a FOIA request made on June 3 by telephone be in writing and

directed to Red Clay’s counsel. We find that the minutes of the

executive session on June 2 are not exempted from disclosure, and

must be produced.

We further find that Red Clay went into executive session for a

purpose authorized by statute: to discuss potential litigation

with its counsel when an open meeting would have an adverse

effect on the Board’s litigation position. The notices used by

Red Clay to give the public notice of its meetings, however, are

potentially misleading. Red Clay is directed to revise its form

of notice in time for its next regularly scheduled meeting to

make it clear that there is a single public meeting at a single

location, during which meeting the Board may vote to hold an

executive session as the first item on the agenda. In that way,

the public can choose whether to attend the beginning of the

meeting to watch the vote on going into executive session, to

make sure that it complies with the requirements of FOIA.

W. Michael Tupman

Deputy Attorney General

APPROVED:

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Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

Katherine R. Witherspoon, Esquire

Elizabeth A. Bacon, Opinion Administrator