How specific does a Delaware public body's agenda have to be when noticing an executive session for legal advice?

Official title

24-IB46 10/25/2024 FOIA Opinion Letter to Randall Chase re: Diamond State Port Corporation

Plain-English summary

Before the September 27, 2024 Diamond State Port Corporation (DSPC) Board meeting, AP reporter Randall Chase filed a preemptive FOIA petition. The agenda noticed an executive session for "strategy sessions involving legal advice and to discuss the content of documents excluded from the definition of 'public record' in §10002 of Title 29." Chase argued (1) that bare "legal advice" is not a permitted executive-session ground (FOIA only allows executive sessions for "strategy sessions involving legal advice with respect to collective bargaining or pending or potential litigation when an open meeting would adversely affect the body's bargaining or litigation position"), and (2) that if the Board planned to discuss the labor strike privately, that topic would not qualify.

The AG sided with the DSPC. The Executive Director's affidavit attested that the executive session was for legal advice related to pending litigation, fitting § 10004(b)(4)'s strategy-sessions exemption. On agenda specificity, the AG cited O'Neill v. Town of Middletown for the rule that public bodies do not need to "elaborate in great detail" on agendas about what legal subjects will be discussed; "strategy sessions involving legal advice" was sufficient under O'Neill's standard. On the labor strike concern, the Executive Director swore under oath that the strike was not discussed in executive session and was instead addressed during an open-session item. The two-track defense (correct executive-session ground plus sworn evidence about what was actually discussed) cleared both prongs of Chase's challenge.

What this means for you

If you are a Delaware public body

The opinion holds that "strategy sessions involving legal advice" is sufficiently specific agenda language to notice an executive session. Section 10002(a) requires a body to state the ground for an executive session, but, per O'Neill v. Town of Middletown, public bodies are not "required to elaborate in great detail" what legal subjects will be discussed. The opinion holds this notice was valid where the session fell within § 10004(b)(4): a strategy session involving legal advice with respect to collective bargaining or pending or potential litigation, where an open meeting would adversely affect the body's position. It notes the DSPC supported its position with a sworn affidavit from its Executive Director attesting the session was for legal advice on pending litigation.

If you are a journalist or watchdog

The opinion holds that the DSPC carried its burden through the Executive Director's sworn affidavit, which attested that the executive session was for legal advice on pending litigation and that the labor strike was discussed only in open session, not in executive session. Because no contradicting evidence was offered, the opinion accepted that affidavit and found no violation. The petition here was filed preemptively, before the September 27, 2024 meeting.

If you work in public-sector labor relations

The opinion did not decide whether discussing a labor strike could itself qualify as an executive-session topic; it found the strike was not discussed in executive session. The permitted ground here was § 10004(b)(4)'s strategy session with respect to pending litigation. The opinion records that the strike was instead addressed publicly under an open-session agenda item.

Common questions

What's "strategy sessions involving legal advice" actually authorized for?

Section 10004(b)(4) authorizes executive sessions for "[s]trategy 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." Three pieces: (1) it is a strategy session, (2) it concerns collective bargaining or pending/potential litigation, and (3) open discussion would adversely affect the body's position.

Does the agenda need to name the litigation?

No. O'Neill v. Town of Middletown held that public bodies do not have to "elaborate in great detail" about what legal or personnel subjects will be discussed. "Strategy sessions involving legal advice" or "Legal Issues" or "Legal & Personnel Issues" all passed muster in O'Neill and subsequent AG opinions. Naming specific cases or counterparties could undercut the very strategy the executive session protects.

What about the labor strike at the Port?

Chase's preemptive concern was that the Board might use "legal advice" as a basis to discuss the potential labor strike privately. The opinion accepted the Executive Director's sworn statement that the strike was not discussed in executive session and was instead addressed publicly under an open-session agenda item, and that the executive session itself was for legal advice on pending litigation.

Could the petition still have succeeded if the Board did discuss the strike privately?

The opinion did not reach that question. It found, based on the Executive Director's sworn and uncontradicted testimony, that the strike was not discussed in executive session. Under § 10005(c) the public body carries the burden to justify a decision to meet in executive session, and the opinion held the DSPC met that burden with competent evidence here.

Background and statutory framework

29 Del. C. § 10001 sets FOIA's purpose: government accountability through open meetings and access to public records. § 10004 establishes the open-meeting rule. § 10004(b) lists nine grounds for executive session, including § 10004(b)(4)'s strategy sessions for collective bargaining or pending/potential litigation. § 10002(a) requires the agenda to state any executive session and the specific ground for it.

The agenda-specificity standard comes from O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007), which held that descriptors like "Personnel & Legal Issues" or "Legal Issues" are adequate. The Court explained that requiring more detail would conflict with the executive-session privacy that the descriptor is supposed to enable.

The public body's burden is set by 29 Del. C. § 10005(c). After Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), an affidavit may be required. The DSPC's Executive Director affidavit met both burdens: it confirmed the executive session topic was legal advice on pending litigation, and it confirmed the labor strike was discussed in open session.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002(a) (agenda requirements)
• 29 Del. C. § 10004 (open meetings)
• 29 Del. C. § 10004(b) (executive session grounds)
• 29 Del. C. § 10004(b)(4) (strategy sessions on bargaining or litigation)
• 29 Del. C. § 10005 (petition procedure)
• 29 Del. C. § 10005(c) (burden of proof)
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/25/24-ib46-10-25-2024-foia-opinion-letter-to-randall-chase-re-diamond-state-port-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-24-IB46.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

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-IB46
October 25, 2024

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 Diamond State Port Corporation ("DSPC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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 discussed more fully herein, we determine that the DSPC did not violate FOIA by failing to give sufficient notice of the executive session regarding legal advice on its September 27, 2024 meeting agenda. We also find that the DSPC did not violate FOIA by discussing the labor strike in executive session, as the DSPC provided sworn evidence that this topic was not discussed in executive session at the meeting.

BACKGROUND

Prior to the September 27, 2024 Diamond State Port Corporation Board of Directors meeting, you filed this Petition, alleging that the DSPC was about to violate FOIA. The September 27, 2024 meeting agenda noticed a "[m]otion to move into executive session for strategy sessions involving legal advice and to discuss the content of documents excluded from the definition of 'public record' in §10002 of Title 29," which you contend does not sufficiently specify the reason for an executive session to receive legal advice.[1] You point out that FOIA does not have a blanket exception for legal advice. Further, if the DSPC planned a discussion of the potential labor strike in this session, you allege that this topic is not permitted for executive session.

On October 8, 2024, counsel for the DSPC replied to this Petition on the DSPC's behalf ("Response") and attached the affidavit of the Executive Director of the DSPC. The Executive Director attests that the session was for legal advice related to pending litigation. The DSPC asserts that the notice requirements for executive sessions are less stringent, and its notice for this executive session, "strategy sessions involving legal advice," was appropriate. In addition, the Executive Director stated under oath that discussion of a labor strike was not planned for executive session and was not discussed therein; rather, this topic was addressed publicly under an open session item on the agenda.

DISCUSSION

The public body has the burden of proof to "justify a decision to meet in executive session or any failure to comply with [FOIA]."[2] In certain circumstances, a sworn affidavit may be required to meet that burden.[3]

FOIA's purpose is to ensure government accountability by providing Delaware's citizens access to open meetings, as well as access to the public records of those entities.[4] FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public. Public bodies, with proper notice of the intent to enter an executive session on its agenda, may hold an executive session to discuss one of the nine topics that are outlined in the statute.[5] One of those topics is "[s]trategy 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."[6] FOIA requires an agenda to include "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b) of [FOIA]."[7] However, public bodies are not required to elaborate the reasons for executive sessions in great detail, and the reason given here, "strategy sessions involving legal advice," is sufficiently specific to satisfy the requirements of FOIA.[8]

In addition, the Petition, which was filed before the meeting, contends that the topic of a labor strike was potentially planned for this executive session, and if so, this topic is inappropriate for executive session. In reply, the DSPC provided the Director's sworn testimony, clarifying that the labor strike was not discussed in executive session, but instead, this matter was publicly discussed at the September 27, 2024 meeting. As such, the DSPC met its burden of demonstrating, with competent evidence, that it did not violate FOIA in this regard.

CONCLUSION

For the reasons set forth above, we conclude that the DSPC did not violate FOIA by failing to give sufficient notice of the executive session regarding legal advice on its September 27, 2024 meeting agenda. In addition, we find that the DSPC did not violate FOIA by discussing the labor strike in executive session, as the DSPC provided sworn evidence that this topic was not discussed in executive session at the meeting.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Katherine H. Betterly, Attorney for Diamond State Port Corporation

[1] Petition.
[2] 29 Del. C. § 10005(c).
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[4] 29 Del. C. § 10001; Judicial Watch, 267 A.3d at 1004.
[5] 29 Del. C. § 10004.
[6] 29 Del. C. § 10004(b)(4).
[7] 29 Del. C. § 10002(a).
[8] See, e.g., O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007) (stating the "statute requires public bodies to provide the reason for entering into an executive session, but that does not require public bodies to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed" and determining that "Personnel & Legal Issues" and "Legal Issues" are adequate descriptors on the executive session agendas).