Does Delaware law force a town to keep police discipline records secret, or to hold a grievance hearing in private?

Official title

24-IB22 06/18/2024 FOIA Opinion Letter to Craig McGowan re: FOIA Complaint Concerning the Town of Georgetown

Plain-English summary

The Town of Georgetown received a FOIA request that asked, in part, for the discipline records and eight months of schedules of two of its police officers. The Town responded by producing discipline records for one officer and schedules for both. Separately, the Mayor and Council scheduled a grievance hearing involving those officers as a public meeting. A lawyer for the National Fraternal Order of Police asked that the hearing be closed; the Town refused. The FOP then filed a FOIA petition arguing both moves (releasing the records and refusing executive session) violated FOIA.

The AG sided with the Town on both points. FOIA's exemptions are permissive: they let a public body decline to release certain records, but they do not require secrecy. As the AG put it, the exemptions "do not purport to create an affirmative right of non-disclosure." A public body that chooses to release information that could have been withheld is not violating FOIA by doing so. The same logic applies to executive sessions. Section 10004(b) is written with the word "may" ("public body may call for an executive session"), so a public body is allowed but not obligated to close a meeting for any of the nine listed purposes. The Town's choice to keep the grievance hearing public was lawful. The AG also flagged that other (non-FOIA) statutes might bear on these issues, but emphasized the AG's petition authority is limited to FOIA claims.

What this means for you

If you are a Delaware police officer or police union representative

The opinion holds that FOIA did not require the Town to withhold the officer discipline records and schedules, nor to close the grievance hearing at the FOP's request. It expressly notes that its findings "do not preclude the application of other statutes or legal authority outside of FOIA," but that the office may not consider non-FOIA claims in the petition process because its authority is limited to FOIA violations.

If you are a Delaware municipality deciding what to release about an officer

The opinion holds that FOIA's exemptions are permissive: releasing records, even ones that are exempt from disclosure, does not constitute a violation of FOIA. So the Town did not violate FOIA by producing the discipline records and schedules.

If you are a journalist trying to cover police misconduct in Delaware

The opinion holds that when a public body chooses to release records that an exemption would have allowed it to withhold, that release is not a FOIA violation, because the exemptions "do not purport to create an affirmative right of non-disclosure."

If you are a citizen attending a Delaware municipal grievance hearing

The opinion holds that meetings of public bodies are open to the public, and that the executive-session provision is permissive: a public body "may call for an executive session" for the listed purposes but is not required to. The Town's refusal to close the grievance hearing was therefore not a FOIA violation.

Common questions

Why are FOIA exemptions "permissive" rather than mandatory?

The text of § 10002(o) says certain records "shall not be deemed public," meaning they fall outside the FOIA disclosure mandate. The AG and Delaware courts have read that as creating a floor for the public's right to records, not a ceiling. As the Court of Chancery put it in Reeder v. Del. Dep't of Ins. (2006), exemptions "do not purport to create an affirmative right of non-disclosure." A public body keeps the option to release, even when an exemption would have allowed withholding.

Does the officer have any protection outside FOIA?

The opinion does not decide that. It notes that its findings do not preclude the application of other statutes or legal authority outside of FOIA, but that the office may not consider such non-FOIA claims in the petition process.

What about the Mayor and Council's refusal to go into executive session?

The opinion holds that the executive-session language is permissive, not mandatory: a public body "may call for an executive session closed to the public" for any of the nine purposes set forth in the statute, but FOIA does not require it to. So the refusal to hold an executive session was not a violation.

Could a court reach a different result on the same facts?

The opinion does not say. It notes only that other statutes or legal authority outside FOIA may apply to these circumstances, and that this office cannot consider non-FOIA claims in a Section 10005 petition. Under FOIA itself, it found no violation in releasing the records or keeping the hearing open.

Background and statutory framework

The Town of Georgetown received a FOIA request that included two officers' discipline records and eight months of schedules. The Town produced discipline for one officer (the other apparently had none, or none responsive) and schedules for both. The Mayor and Council scheduled a grievance hearing as a public meeting. The FOP, through Mr. McGowan, asked the Town to close the hearing; the Town declined.

Under § 10002(o), Delaware FOIA defines public records broadly but excludes nineteen categories. The Court of Chancery's Reeder v. Del. Dep't of Ins. (Del. Ch. 2006) reading is that those exemptions "limit public access in certain circumstances" but "do not purport to create an affirmative right of non-disclosure." That makes them permissive: the public body can withhold, but doesn't have to.

For meetings, § 10004 makes meetings of public bodies open by default. Section 10004(b) provides that a "public body may call for an executive session closed to the public ... but only for the following purposes," followed by nine enumerated grounds. The word "may" matters: the public body has the option, not the obligation. The AG cited Del. Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984) for FOIA's broader transparency policy: "public entities, as instruments of government, should not have the power to decide what is good for the public to know."

Finally, the AG flagged that under § 10005(e) the AG petition process is limited to FOIA claims; non-FOIA claims (employment law, labor contracts, statutory privacy) belong elsewhere.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10002(o) (definition and exemptions)
• 29 Del. C. § 10004 (open meeting requirements)
• 29 Del. C. § 10004(b) (permissive executive sessions)
• 29 Del. C. § 10005 / § 10005(e) (petition procedure and AG authority)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Del. Solid Waste Auth. v. The News Journal Co., 480 A.2d 628 (Del. 1984)
• Reeder v. Del. Dep't of Ins., 2006 WL 510067 (Del. Ch. Feb. 24, 2006)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/06/18/24-ib22-06-18-2024-foia-opinion-letter-to-craig-mcgowan-re-foia-complaint-concerning-the-town-of-georgetown/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/06/Attorney-General-Opinion-No.-24-IB22.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB22
June 18, 2024

VIA EMAIL
Craig J. McGowan
National Fraternal Order of Police
[email protected]

RE:

FOIA Petition Regarding the Town of Georgetown

Dear Mr. McGowan:
We write in response to your correspondence alleging that the Town of Georgetown violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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. For the reasons set forth below, we determine that the Town did not violate FOIA by releasing information in response to a FOIA request or declining to hold a hearing in executive session.

BACKGROUND

The Town of Georgetown received a FOIA request, in part seeking two police officers' discipline records and schedules for an eight-month period. The Town responded by providing records regarding discipline for one officer and schedules for both officers. The Petition alleges that the provision of this information violates FOIA. In addition, the Mayor and Council scheduled a public grievance hearing involving the officers. Your request for this hearing to be closed to the public was declined, and you contend that this denial is also a violation of FOIA.

DISCUSSION

"FOIA was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities."[1] FOIA's open meeting laws are intended to "inform the electorate and [to] acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know."[2] The statute broadly defines a "public record," but states nineteen categories of records "shall not be deemed public."[3] "Although the exemptions limit public access in certain circumstances, they do not purport to create an affirmative right of non-disclosure."[4] Releasing records, even if they are exempt from disclosure, does not constitute a violation of FOIA. As such, we find no violation of FOIA in this instance.

Meetings of public bodies are open to the public,[5] but a public body "may call for an executive session closed to the public" for any of the nine purposes set forth in the statute.[6] This statutory language for holding an executive session is permissive, rather than mandatory. Thus, FOIA does not require a public body to hold an executive session for those purposes, and we find no violation of FOIA with respect to the Mayor and Council's refusal to hold an executive session in this matter.

Finally, we note that the findings in this Opinion do not preclude the application of other statutes or legal authority outside of FOIA to these circumstances. However, this Office may not consider any such non-FOIA claims in this petition process, as this Office's authority is limited to addressing claims of FOIA violations.[7]

CONCLUSION

For the foregoing reasons, we conclude that the Town did not violate FOIA by providing records in response to this request or by declining to hold an executive session as requested.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Stephani J. Ballard, Town Solicitor

[1] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996, 1004 (Del. 2021).
[2] Del. Solid Waste Auth. v. The News Journal Co., 480 A.2d 628, 631 (Del. 1984).
[3] 29 Del. C. § 10002(o).
[4] Reeder v. Del. Dep't of Ins., 2006 WL 510067, at *11 (Del. Ch. Feb. 24, 2006).
[5] 29 Del. C. § 10004.
[6] 29 Del. C. § 10004(b) (A "public body may call for an executive session closed to the public pursuant to subsections (c) and (e) of this section, but only for the following purposes. . . .") (emphasis added).
[7] 29 Del. C. § 10005(e).