Does a school district have to tape-record its executive sessions or identify students and employees by name when it meets to discuss personnel matters?

Official title

97-IB23: FOIA Complaint Against Woodbridge School District

Plain-English summary

A parent filed three separate FOIA complaints against the Woodbridge School District. The AG declined to even address the first one, an "emergency" meeting from June 1997 that allegedly strayed beyond its stated purpose, because the complaint wasn't filed until nearly six months later; FOIA gives citizens 60 days to challenge a meeting in court, and while the AG's office isn't bound by that exact deadline when it investigates complaints, it has consistently treated long-delayed complaints as untimely. On the second complaint, about vague, non-tape-recorded minutes from an October 7 executive session, the AG found no violation: FOIA requires written minutes recording who attended and how each vote came out, but it does not require a public body to tape-record its meetings or write detailed summaries of what was discussed behind closed doors. On the third complaint, about an October 21 executive session where the agenda simply said "Executive Session - Personnel," the AG found that was enough, since FOIA doesn't require naming the specific employee or student involved to invoke the personnel exception. The parent's underlying concern, a request to transfer his son out of an overcrowded class, was properly discussed in that closed session because it necessarily touched on the "competency and abilities" of the student and the teachers involved, which FOIA specifically allows to stay confidential.

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: How long does someone have to file a FOIA complaint about a public meeting?
A: At the time of this opinion, the statute set a 60-day deadline for a citizen to challenge a meeting in court. The AG's office wasn't strictly bound by that deadline when investigating complaints, but found a nearly six-month delay here made the complaint untimely.

Q: Does a public body have to tape-record its meetings or executive sessions?
A: No, according to this opinion. FOIA only required written minutes recording attendance and votes; it did not require tape recording or a detailed narrative of the discussion.

Q: Does a school board have to name a specific student or employee on the agenda before discussing them in a personnel executive session?
A: No. The AG found that a generic "Executive Session - Personnel" line item was sufficient, and that it wasn't necessary to identify the individual involved to invoke the personnel exception.

Q: Can a school district discuss a student's class-size transfer request behind closed doors?
A: Yes, according to this opinion, because that kind of request necessarily requires weighing the competency and abilities of the student and the teachers involved, a topic FOIA allows public bodies to discuss in executive session.

Background and statutory framework

The three complaints arose from separate Woodbridge School District meetings in 1997. On timeliness, the AG applied the 60-day limitations period in 29 Del. C. Section 10005(a) by analogy, consistent with its past practice of declining to investigate complaints raised long after the fact. On the minutes issue, the AG applied Section 10004(f)'s requirement that minutes record attendance and votes, and relied on Common Cause of Delaware v. Red Clay Consolidated School District Board of Education for the point that FOIA does not require any particular level of detail summarizing what was discussed in executive session. On the personnel-exception issue, the AG applied Section 10004(b)(9), which authorizes executive session to discuss "the names, competency and abilities of individual employees or students," and found the class-size transfer request fell squarely within that exception because addressing it required evaluating the relevant student's and teachers' abilities.

Citations and references

Statutes:

• 29 Del. C. Section 10004(b)(9), executive session exception for discussing the competency and abilities of individual employees or students
• 29 Del. C. Section 10004(f), minutes requirement (attendance and votes, not tape recording or narrative detail)
• 29 Del. C. Section 10005(a), 60-day statute of limitations for challenging a meeting in court

Cases:

• Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, 1995 WL 733401 (Del. Ch. Dec. 5, 1995), on the lack of a required level of detail in executive-session minutes

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/12/23/97-ib23-foia-complaint-against-woodbridge-school-district/

Original opinion text

December 23, 1997

New Castle County – Civil Division

Mr. Milton F. Morozowich

R.D. 2, Box 166

Bridgeville, DE 19933

RE: Freedom of Information Act Complaint

Against Woodbridge School District

Dear Mr. Morozowich:

This letter is our written determination in response to your

complaints alleging that the Woodbridge School District (the

“School District”) violated the Freedom of Information Act, 29

Del. C. Sections 10001-10005 (“FOIA”). All three letters of

complaint were received by this Office on November 5, 1997.

Your first letter, dated October 25, 1997, alleged that the

minutes of the executive session held by the School District on

October 7, 1997 were “vague and non-specific” and the meeting

should have been tape-recorded. Your second letter, dated October

29, 1997, alleged that the School District noticed an “emergency”

meeting on June 4, 1997 to discuss the assistant superintendent’s

employment contract, but in fact discussed other personnel issues

such as salary increases for all administrative staff. Your third

letter, dated October 30, 1997, alleges that the School District

purportedly met in executive session on October 21, 1997 to

discuss personnel matters, but in fact discussed matters not

authorized by statute to be closed to the public.

By letter dated November 6, 1997, we asked the School District to

respond to your three complaints within ten days. The School

District asked for, and we granted, a ten-day extension of time

to respond. By letter dated November 24, 1997, we received the

School District’s response, denying any violations of FOIA.

This Office declines to make any written determination regarding

the meeting on June 4, 1997. There is a 60-day statute of

limitations for any citizen to challenge in court a meeting

allegedly held in violation of FOIA. See 29 Del. C. Section

10005(a). While this Office is not bound by that statute of

limitations when it investigates FOIA complaints, this Office has

declined in the past to investigate matters which were not

brought to our attention in a timely fashion. See Att’y Gen. Op.

93-IO06 (Mar. 5, 1993); Att’y Gen. Op. 93-IO28 (Sept. 21, 1993).

While we have discretion to determine when a complaint is timely,

we conclude that the delay of almost six months in this case

warrants the conclusion that your complaint was not timely filed.

FOIA does not require a public body to tape-record its meetings

or executive sessions. The statute only requires that “[e]ach

public body shall maintain minutes of all meetings, including

executive sessions, conducted pursuant to this section, and shall

make such minutes available for public inspection and copying as

a public record.” 29 Del. C. Section 10004(f). This Office has

previously determined that the statutory duty to maintain written

minutes of public meetings does not require a public body to

tape-record the meeting. See Att’y Gen. Op. 94-IO23 (June 21,

1994).

Moreover, the minutes of executive sessions need only include “a

record of those members present and a record by individual

members (except where the public body is a town assembly where

all citizens are entitled to vote) of each vote taken and action

agreed upon.” 29 Del. C. Section 10004(f). But FOIA “neither says

that the subjects discussed must be summarized nor attempts to

define how specific such summary should be. . . . I cannot

conclude that there is a clear implied statutory requirement to

summarize the subjects discussed with any degree of specificity

in the minutes of executive sessions.” Common Cause of Delaware

v. Red Clay Consolidated School District Board of Education, Del.

Ch., C.A. No. 13798, 1995 WL 733401, at p. 4 (Dec. 5, 1995)

(Balick, V.C.).

We do not find that the School District violated FOIA in

connection with its October 7, 1997 meeting. The School District

prepared written minutes of the executive sessions convened

during that meeting. The minutes contain all of the information

required by statute.

With regard to the October 21, 1997 meeting, the agenda for that

meeting had a line item for “Executive Session – Personnel.” This

Office has previously determined that “‘it is not necessary to

identify the personnel in convening an executive session to

constitute personnel matters.'” Att’y Gen. Op. 96-IB27 (Aug. 1,

1996) (citation omitted). At the meeting, you reiterated a

concern you had previously raised with the Superintendent

regarding the size of your son’s classes and his request for

transfer. The Superintendent decided that it would be best to

take that matter up in executive session along with other

personnel matters. The legal question, then, is whether your

son’s request for transfer concerned the “names, competency and

abilities of individual employees or students,” the discussion of

which FOIA authorizes in executive session. 29 Del. C. Section

10004(b)(9).

We conclude that your son’s transfer request falls within the

personnel exception for executive session. A transfer request

based on large class size necessarily requires the School

District to consider the competency and abilities of the

individual student involved, as well as the respective competency

and abilities of the current teacher and the proposed teacher.

Conclusion

Based on your complaint, the School District’s response, and the

documents provided to us, we determine that the School District

did not commit any violation of FOIA in connection with the

October 7 and October 21, 1997 meetings. We decline to make any

determination regarding the June 4, 1997 meeting because the

complaint was untimely.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Malcolm S. Cobin

Assistant State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Keith R. Brady, Esquire

Chief Deputy Attorney General

James D. Griffin, Esquire

Chrystyna Lafferty

Opinion Coordinator