Can a Delaware public body hold an executive session before its publicly noticed meeting starts?

Plain-English summary

The Diamond State Port Corporation (DSPC) Board scheduled a virtual public meeting for January 21, 2022 at 10:00 a.m. The agenda listed routine items including approval of the October 6, 2021 meeting minutes. It did not mention an executive session.

On the day of the meeting, the Board convened at 9:00 a.m., an hour before the noticed public start time, to hold an executive session. The public session began about 10:27 a.m. During the public session, the Board referenced the earlier executive session, which had discussed "proprietary information." AP reporter Randall Chase emailed DSPC staff who confirmed the early executive session. He then filed a petition.

The DSPC's Executive Director attested that the executive session was held under § 10004(b)(6) (to discuss documents containing trade secrets or confidential commercial/financial information exempt under § 10002(o)(2)), no vote was taken in the executive session, and minutes were recorded. The DSPC argued that repeating the session would not be appropriate because the substantive issues were properly closed to the public.

The AG found two FOIA violations:

1. No public notice of the executive session. § 10002(a) and § 10004(c) require the agenda to include notice of intended executive session, including its purpose. The DSPC's agenda did not.

2. No vote to enter executive session in a meeting open to the public. § 10004(c) requires "[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." Voting at 9:00 a.m. when the public was told the meeting started at 10:00 was not open to the public, even if technically a vote happened.

The AG also rejected the petition's third claim (that the October 6, 2021 minutes were not approved), accepting the Executive Director's sworn statement that they were approved during the public session.

The remedy: repeat the executive session in compliance with FOIA. Cited Op. 17-IB27 and Op. 02-IB33 for the principle that "stand-alone" executive sessions are not permitted under FOIA.

What this means for you

If you serve on a Delaware quasi-public board, port authority, or commission

The opinion holds that the DSPC committed two FOIA violations. First, it "failed to provide any public notice of its executive session on its January 21, 2022 meeting agenda," whereas FOIA requires a public body to provide notice of its intent to hold an executive session, including its purpose. Second, holding the vote to enter executive session about an hour before the noticed public start time did not satisfy § 10004(c)'s requirement that the vote occur "at a meeting of the public body which shall be open to the public," because no public notice gave the public a chance to attend. The AG recommended the Board repeat the executive session in compliance with FOIA.

If you are a Delaware journalist or researcher tracking a public body

The opinion describes how the violation surfaced: the agenda was titled "Public Session Board of Directors Meeting," set the start at 10:00 a.m., and did not mention an executive session, yet the Board convened at 9:00 a.m. for an executive session and later referenced it during the public session. When the reporter emailed DSPC staff, they confirmed the early executive session, which became the basis for the petition.

If you are a public body's general counsel

The opinion holds that the vote to enter executive session is itself a public act that must occur in a meeting open to the public, with the result made public and recorded in the minutes. The DSPC conceded that its early start had "the practical effect of precluding the public's attendance at the opening of the public meeting and the vote into executive session," which the AG treated as a failure to meet its burden of proof under § 10005(c).

Common questions

Q: What is a "stand-alone" executive session?
A: An executive session held without a corresponding open public meeting. Op. 02-IB33 first ruled that FOIA does not permit them. Op. 17-IB27 reaffirmed it. The procedural requirement (vote to enter in public) cannot be satisfied if there is no public session.

Q: Why was the early-morning vote not good enough?
A: The opinion holds that even though the DSPC's counsel said the Board took a vote before going into executive session, the vote "does not satisfy FOIA's requirement that the Board vote to enter executive session in a meeting 'open to the public,' as the Board provided no public notice to allow the public the opportunity to attend this session."

Q: Why was the DSPC allowed to discuss "trade secrets" in executive session?
A: The DSPC invoked § 10004(b)(6), which authorizes an executive session to discuss the contents of a document excluded from the definition of "public record," and § 10002(o)(2), which exempts "trade secrets and commercial or financial information obtained from a person which is of a privileged and confidential nature." The opinion did not fault the purpose; it faulted the missing notice and the vote taken outside a public meeting.

Q: What did the AG recommend as a remedy?
A: The AG recommended that the Board "repeat this executive session in compliance with FOIA." The opinion does not order production of the executive-session minutes or any other relief.

Q: Did the AG find any violation as to the meeting minutes?
A: No. The petition also alleged the Board did not approve its October 6, 2021 minutes as the agenda indicated, but the AG accepted the Executive Director's sworn statement that the minutes were approved during the public session, which satisfied the DSPC's burden on that claim.

Background and statutory framework

The authorized purpose. The DSPC relied on § 10004(b)(6), which authorizes an executive session "for discussion of the contents of a document, excluded from the definition of 'public record'" under § 10002(o), together with § 10002(o)(2), the trade-secrets and confidential commercial/financial information exemption. The opinion did not question that the subject matter could be discussed in executive session.

Section 10004(c). This is the procedural rule the DSPC violated. The opinion quotes it: a public body may hold an executive session "upon affirmative vote of a majority of members present," and "[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."

Stand-alone prohibition. The opinion cites Op. 17-IB27 and Op. 02-IB33 for the principle that "FOIA does not permit a 'stand alone' executive session." A board cannot hold the executive session as a freestanding gathering detached from a properly noticed public meeting.

Diamond State Port Corporation. A public body subject to Delaware FOIA. The opinion treats the DSPC Board of Directors as bound by FOIA's open-meeting requirements.

Citations and references

Statutes:

• 29 Del. C. § 10004(b)(6) (executive session for confidential documents)
• 29 Del. C. § 10004(c) (vote to enter must be in public)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692 (Del. Dec. 6, 2021)

Prior AG opinions:

• Del. Op. Att'y Gen. 17-IB27, 2017 WL 3426267 (July 18, 2017) (stand-alone executive session prohibited)
• Del. Op. Att'y Gen. 02-IB33, 2002 WL 34158592 (Dec. 23, 2002) (foundational stand-alone ruling)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/02/18/22-ib03-02-18-2022-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-diamond-state-port-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/02/Attorney-General-Opinion-No.-22-IB03.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. 22-IB03
February 18, 2022

VIA EMAIL
Randall Chase
[email protected]

RE:

FOIA Petition Regarding the Diamond State Port Corporation

Dear Mr. Chase:
We write in response to your correspondence alleging that the Board of Directors of the
Diamond State Port Corporation ("DSPC") 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. As explained below, we determine that the DSPC violated FOIA by failing to provide
proper public notice of its executive session held on January 21, 2022 and to take the requisite vote
of its members in a meeting open to the public before entering the executive session. To remedy
these violations, we recommend that the Board repeat this executive session in compliance with
FOIA.

BACKGROUND
The Board scheduled a virtual meeting for January 21, 2022. The notice and agenda,
entitled "Public Session Board of Directors Meeting," indicated the meeting would begin at 10:00
am. In addition to other topics, the agenda included consideration of the Board's October 6, 2021
Board meeting minutes and did not mention an executive session. On the day of the meeting, the
Board convened an hour earlier than the noticed time to hold an executive session prior to the
public session of the meeting. After the executive session ended, the public session began at
approximately 10:27 am. At this public session, you allege that the Board referenced a prior

1

executive session to discuss "proprietary information." 1 Following the conclusion of the meeting,
you emailed the DSPC staff, who confirmed that an executive session did take place earlier that
day. You filed this Petition, alleging that the Board did not comply with the open meeting
requirements, as it failed to give public notice of this executive session and its purpose and failed
to take a vote in public session to hold this executive session. In addition, you allege that contrary
to the posted agenda, the Board's October 6, 2021 meeting minutes were not considered at the
public meeting.
The DSPC's counsel provided a response on January 31, 2022 ("Response"), attaching the
affidavit of its Executive Director. The DSPC acknowledges that the agenda improperly noticed
the start time of the meeting and failed to provide notice of the executive session, including the
purpose of this session. Notwithstanding the early start, the DSPC maintains it did take a vote
before entering executive session, but the DSPC admits that its actions resulted in "the practical
effect of precluding the public's attendance at the opening of the public meeting and the vote into
executive session." 2 The DSPC asserts that its executive session was held for a proper purpose
under 29 Del. C. § 10004(b)(6): to discuss the contents of a document excluded from disclosure
pursuant to 29 Del. C. § 10002(o)(2) which exempts "trade secrets and commercial or financial
information obtained from a person which is of a privileged and confidential nature." 3 The
DSPC's Executive Director attested that the discussions in executive session were limited to
discussing "matters relating to the contents of documents that are financial or commercial
information obtained from a person which is of a privileged or confidential nature," that no vote
occurred during the executive session, and that minutes from the executive session were recorded. 4
As no vote took place during the executive session, the discussion was solely limited to matters
properly considered outside of public view, and minutes were recorded, the DSPC argues repeating
this executive session would not be appropriate. Finally, the DSPC provided its Executive
Director's sworn testimony that the October 6, 2021 minutes were approved at the January 21,
2022 meeting during the public session.

DISCUSSION
The Petition alleges that the DSPC committed three violations of FOIA: 1) failing to
approve the October 6, 2021 meeting minutes as indicated in the agenda; 2) failing to give proper
public notice of its January 21, 2022 executive session, including its purpose for convening this
session; and 3) failing to take a vote to enter this executive session in public session. The burden
of proof is on the public body regarding any failure to comply with the FOIA statute. 5 A sworn
1

Petition.

2

Response, p. 5.

3

Id., p. 3-4.

4

Id., Affidavit of Executive Director Eugene Bailey.

5

29 Del. C. § 10005(c).
2

affidavit may be required to meet that burden. 6 As a preliminary matter, the DSPC's sworn
statement that its October 6, 2021 meeting minutes were approved at the public meeting satisfies
DSPC's burden of proof to overcome the allegation that DSPC failed to address this item. 7 As
discussed below, we find that the DSPC failed to meet its burden to demonstrate that it complied
with FOIA with respect to the two remaining claims.
FOIA mandates that a public body provide public notice of its intent to hold an executive
session in its agenda, including the purpose for the executive session. 8 To enter an executive
session, a majority of the present members of the public body must vote in a meeting open to the
public in favor of entering executive session. 9 In this case, the Board admits it failed to provide
any public notice of its executive session on its January 21, 2022 meeting agenda. In addition,
although the DSPC's counsel asserts that the Board took a vote before its executive session about
an hour before the posted public meeting time, this vote does not satisfy FOIA's requirement that
the Board vote to enter executive session in a meeting "open to the public," as the Board provided
no public notice to allow the public the opportunity to attend this session. Thus, the Board also
failed to take the required vote in a meeting "open to the public" before entering executive
session. 10 Accordingly, we determine that the DSPC violated FOIA by failing to provide proper
public notice of its executive session and failing to vote to enter this executive session in a meeting
open to the public and recommend that the Board repeat this executive session in compliance with
FOIA.

6

Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at *12 (Del. Dec. 6, 2021).

7

Response, Affidavit of Executive Director Eugene Bailey.

8

29 Del. C. §§ 10002(a), 10004(c).

9

29 Del. C. § 10004(c) ("A public body may hold an executive session closed to the public
upon affirmative vote of a majority of members present at a meeting of the public body. The 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.").
10

Id.; see also Del. Op. Att'y Gen. 17-IB27, 2017 WL 3426267, at 3 (July 18, 2017)
("Notwithstanding the foregoing, the record demonstrates that the Council appears to have treated
the meeting as a stand-alone executive session, which FOIA does not permit."); Del. Op. Att'y
Gen. 02-IB33, 2002 WL 34158592, at 3 (Dec. 23, 2002) ("FOIA does not permit a 'stand alone'
executive session.").
3

CONCLUSION
For the reasons set forth above, we conclude that the DSPC violated FOIA by failing to
provide proper public notice of its executive session held on January 21, 2022 and to take the
requisite vote of its members in a meeting open to the public before entering the executive session.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Katherine Betterly, Legal Counsel to Diamond State Port Corporation

4