Can a Delaware public body list 'review financial data' on its agenda as a reason it might go into closed executive session?

Official title

20-IB31 12/11/2020 FOIA Opinion Letter to Mr. Randall Chase re: FOIA Complaint Concerning the Delaware Association of Professional Engineers

Plain-English summary

The Delaware Association of Professional Engineers' Finance/Employee Compensation & Benefits/Facilities Committee posted a November 10, 2020 meeting agenda that warned the Committee might go into executive session "to discuss personnel matters and to review financial data." Reporter Randall Chase filed a petition challenging the inclusion of "financial data" as an executive-session ground.

The AG agreed it was a technical FOIA violation. 29 Del. C. § 10004(b) sets out the closed-list grounds for executive session: personnel matters about specific employees, pending or potential litigation, and a few others. Reviewing financial data is not on that list unless the data is itself an exempt record under 29 Del. C. § 10002. The Committee did not claim that exemption. But the Committee responded that the line was an oversight, that no executive session actually occurred at the meeting, and that the Committee discussed DAPE's audit fully in open session. Going forward, "financial data" would be dropped from agenda boilerplate. The AG accepted that, found the violation technical, and ordered no further remediation.

Currency note

This opinion was issued in 2020. 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.

Background and statutory framework

Delaware FOIA's open-meetings provisions live in 29 Del. C. § 10004. Subsection (b) lists the permissible grounds for executive session. Section 10002(a) requires an agenda to include "a general statement of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefor." As the opinion notes, § 10004(b) does not include an exemption for reviewing financial data unless that data is in a record excluded from the definition of "public record" under § 10002.

Two AG-opinion features framed the violation finding:

1. Specificity of executive-session grounds. The agenda must identify a real, statutorily-authorized basis. "Financial data" by itself does not match anything in § 10004(b). General financial review is the kind of thing that should happen in open session.

2. Technical violations without remediation. AG Opinion 19-IB16 (2019) had reached a similar conclusion: an improper executive-session ground on the agenda is a violation, but where the public body did not actually convene the closed session, the violation is technical and no specific remediation is needed beyond a caution.

The AG's framing here matters: agendas signal intent to the public, and a malformed reason for closing a meeting may chill attendance or signal an end-run around open meetings even if no end-run actually occurs. Calling it a violation, but not requiring remedial action, is the AG's middle-path enforcement tool.

Common questions

Q: When can a public body close a meeting to talk about money?
A: The opinion holds that the discussion must fit a § 10004(b) ground. Reviewing financial data is not on that list unless the data is in a record excluded from the definition of "public record" under § 10002. The Committee did not claim any such exemption.

Q: Why was this only a "technical" violation?
A: Because, as the opinion explains, the Committee did not actually conduct an executive session, so its error in the agenda was harmless. The opinion called it a technical violation, ordered no further remediation, and cautioned the Committee to be more careful in drafting its future agendas.

Q: What did the Committee say happened at the meeting?
A: Through counsel, the Committee said the "financial data" line was included by oversight, that as a matter of practice it does not go into executive session to discuss financial information, and that at the November 10 meeting it discussed DAPE's financial audit in open session without entering executive session. It committed to remove "financial data" from future agendas.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(a) (agenda requirements)
• 29 Del. C. § 10002 (definitions, including exempt records)
• 29 Del. C. § 10004(b) (permissible executive-session grounds)
• 29 Del. C. § 10004(e)(2) (agenda amendment rules)
• 29 Del. C. § 10005 (FOIA petition process)
• Del. Op. Att'y Gen. 19-IB16, 2019 WL 4538301 (Mar. 22, 2019)
• Del. Op. Att'y Gen. 17-IB59, 2017 WL 6348853 (Nov. 20, 2017)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/12/11/20-ib31-12-11-2020-foia-opinion-letter-to-mr-randall-chase-re-foia-complaint-concerning-the-delaware-association-of-professional-engineers/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2021/01/Attorney-General-Opinion-No.-20-IB31.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB31
December 11, 2020
VIA EMAIL
Randall Chase
[email protected]
RE:

FOIA Petition Regarding the Finance/Employee Compensation &
Benefits/Facilities Committee of the Delaware Association of Professional
Engineers

Dear Mr. Chase:
We write in response to your correspondence alleging that the Finance/Employee
Compensation & Benefits/Facilities Committee ("Committee") of the Delaware Association of
Professional Engineers ("DAPE") violated Delaware's Freedom of Information Act, 29 Del. C. §§
10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant
to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur.
We determine that the Committee's reference to an improper purpose for executive session
constituted a technical violation of FOIA. However, because the Committee did not actually
discuss such matters in executive session and has committed to removing "financial data" as a
basis for executive session in future meeting agendas, no further remediation is necessary. We
nevertheless caution the Committee to be more careful in drafting its future agendas.
DISCUSSION
The Committee noticed a meeting for November 10, 2020. The meeting agenda listed
several discussion items and contained the following statement:
Pursuant to 29 Del. C. Section 10004(b), the Committee anticipates that it may go
into Executive Session at this meeting, which session is closed to the public, to
discuss personnel matters and to review financial data. The agenda shall be subject

to change to include additional items including executive sessions, which arise at
the time of the public body's meeting (29 Del. C. 10004(e)(2). No action is taken
during Executive Session. All action is taken in Open Session.
On November 6, 2020, you filed a petition challenging the Committee's intended use of an
executive session to "review financial data." The Committee responded to your Petition on
November 18, 2020 ("Response"). Through its counsel,1 the Committee acknowledged that the
agenda contained a reference to "financial data" as a basis for executive session, but stated that
"[t]he inclusion of the term was due to oversight" and that, "as a matter of practice, the Committee
does not go into executive session to discuss financial information."2 The Committee's counsel
stated that she was a participant in the November 10, 2020 meeting, during which "[t]he
Committee did not go into executive session and there was extensive discussion concerning
DAPE's financial audit for fiscal year 2019-2020" in open public session. The Committee stated
that it would remove any reference to "financial data" as a basis for executive session moving
forward.
FOIA mandates that an agenda be posted in advance of a regular meeting. An agenda
must include "a general statement of the major issues expected to be discussed at a public meeting,
as well as a statement of intent to hold an executive session and the specific ground or grounds
therefor."3 Section 10004(b) lists the permissible grounds for executive session, but does not
include an exemption for reviewing financial data, unless that financial data is in a record excluded
from the definition of "public record" pursuant to Section 10002. The Committee did not allege
that this financial data is exempt under Section 10002. Accordingly, we conclude that the
Committee improperly referenced "review financial data" as a basis for a possible executive
session.4 However, because the Committee did not actually conduct an executive session, its error
was harmless.
CONCLUSION
Based on the above, we conclude that the Committee committed a technical violation of
FOIA by citing to an improper purpose for executive session in its agenda. However, because the
1

See, e.g., Del. Op. Att'y Gen. 17-IB59, 2017 WL 6348853, n. 12 (Nov. 20, 2017) (accepting
the factual representations of the public body's counsel to satisfy the public body's burden of
proof).
2

By way of example, the Committee provided the meeting minutes from its most recent
meeting prior to the November 10, 2020 meeting, during which the Committee discussed DAPE's
budget in open session.
3

29 Del. C. § 10002(a).

4

See, e.g., Del. Op. Att'y Gen. 19-IB16, 2019 WL 4538301, at *3-4 (Mar. 22, 2019)
(concluding that the City committed a technical violation of FOIA by citing to an improper purpose
for executive session in its agenda).
2

Committee did not actually discuss such matters in executive session and has committed to
removing "financial data" as a basis for executive session in future meeting agendas, no further
remediation is necessary. We nevertheless caution the Committee to be more careful in drafting
its future agendas.

Very truly yours,
/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc:

Eileen Kelly, Deputy Attorney General

3