Does a Delaware county council violate FOIA if it votes on 'recommendations from executive session' without specifically noticing that vote on the agenda?

Official title

17-IB48 9/27/2017 FOIA Opinion Letter to Mr. Xerxes Wilson re: FOIA Complaint Concerning New Castle County Council

Plain-English summary

Reporter Xerxes Wilson alleged that New Castle County Council's Personnel Subcommittee violated FOIA at an August 2017 meeting in two ways: its agenda did not flag the possibility of any vote beyond approving minutes, and it then "voted" on recommendations from a closed-door executive session about a confidential personnel matter. The AG reviewed the executive session minutes in camera against the public minutes to check both claims.

The AG found no violation. On the agenda point, the Subcommittee's notice of an executive session "to discuss a confidential personnel matter" was adequate under Delaware case law, which does not require agendas to spell out every legal category of discussion in detail; even though the executive session touched on collective-bargaining strategy and privileged documents beyond the noticed personnel topic, those threads were inextricably tied to the personnel matter itself. On the vote point, the Subcommittee's post-session action turned out to be a vote to direct the Council's own attorney to research legal options, not a substantive decision, so it did not rise to the kind of "major issue expected to be discussed" that FOIA requires an agenda to flag in advance. The AG nonetheless encouraged public bodies to notice the possibility of a post-session vote going forward, and flagged a related recordkeeping problem: the meeting minutes were unclear about exactly when several members who were later marked "absent" from the vote had actually left the room.

Currency note

This opinion was issued in 2017. 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

How much detail must a Delaware public body give when noticing an executive session on its agenda?

Not much, according to this opinion. Citing O'Neill v. Town of Middletown, the AG explained that FOIA requires a stated reason for the executive session but does not require elaborating in detail on what legal, personnel, or other subjects will come up, as long as the stated reason is a genuine, permissible basis and not just a vague catch-all listing of every possible ground under the statute.

Is a vote taken right after a closed executive session automatically a FOIA problem?

Not automatically. The AG looked at what the vote actually did, here, directing legal counsel to research options, rather than deciding a substantive personnel outcome, and concluded it did not qualify as a "major issue" that had to be flagged on the agenda in advance. The opinion was careful to say this would not always be true; a vote that decided the substance of a personnel matter could come out differently.

Can an executive session properly noticed for one purpose drift into other topics?

This opinion found that some latitude exists when the additional topics are inextricably intertwined with the noticed purpose, here, personnel matters bleeding into related legal-strategy and privileged-document discussion. But the AG separately cited Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. as a warning against agendas that use a generic listing of multiple potential executive-session grounds instead of the real one.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, permits executive sessions for enumerated purposes, including personnel matters where the names, competency, and abilities of individual employees are discussed (29 Del. C. § 10004(b)(9)), strategy sessions involving legal advice on collective bargaining or litigation (§ 10004(b)(4)), and discussion of documents excluded from the public-record definition (§ 10004(b)(6)). An agenda must include a general statement of major issues expected to be discussed and, where applicable, a statement of intent to hold an executive session with its specific grounds (§ 10002(a)). Public bodies must also keep accurate meeting minutes, including records of attendance (§ 10002(f)). Delaware case law interprets the agenda-detail requirement modestly: a stated reason like "personnel issues" is generally enough, so long as it is not a generic recitation of every possible statutory ground for closing the meeting.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10002(f) (accuracy of meeting minutes, including attendance)
• 29 Del. C. § 10002(a) (definition of "agenda")
• 29 Del. C. § 10004(b)(4) (executive session for legal strategy on collective bargaining or litigation)
• 29 Del. C. § 10004(b)(6) (executive session to discuss documents excluded from "public record")
• 29 Del. C. § 10004(b)(9) (executive session for personnel matters)
• O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007) (agenda need not elaborate in detail on subjects to be discussed in executive session)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (agenda may not use a generic listing of several potential executive-session grounds)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/09/28/17-ib48-9272017-foia-opinion-letter-mr-xerxes-wilson-re-foia-complaint-concerning-new-castle-county-council/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/09/Attorney-General-Opinion-No.-17-IB48-FINAL.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 17-IB48

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB48

September 27, 2017

VIA EMAIL

Mr. Xerxes Wilson

[email protected]

RE: September 7, 2017 FOIA Correspondence Regarding New Castle County Council

Dear Mr. Wilson:

We write regarding your correspondence, received on September 7, 2017, alleging that the New Castle County Council (the "Council") Personnel Subcommittee (the "Personnel Subcommittee") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you allege that the Personnel Subcommittee violated FOIA by: 1) failing to indicate the potential for any vote other than a vote to approve meeting minutes on its August 14, 2017 meeting agenda, and 2) voting affirmatively on "the recommendations and discussions that Council collectively had during the executive session." We have reviewed the Council's response, which included draft minutes of the executive session, in camera and have compared them with the minutes of the public portion of the meeting. For the reasons set forth below, it is our determination that the Personnel Subcommittee did not violate FOIA as alleged.

RELEVANT FACTS

The Personnel Subcommittee convened a meeting on September 14, 2017. The following members were present at the start of the meeting: Cartier, Diller, Hartley-Nagle, Hollins, Kilpatrick, Powers, Sheldon, Smiley, Street, Tackett, Weiner, Woods. After voting to approve its July 11, 2017 meeting minutes, the Personnel Subcommittee convened an executive session "to discuss a confidential personnel matter." Following the executive session, the Personnel Subcommittee "vote[d] upon the recommendations and discussions that Council collectively had during the executive session." The following members voted in favor of the motion: Cartier, Diller, Hollins, Kilpatrick, Sheldon, Street, Woods, Weiner. No members voted against the motion, and the following members were, in the Personnel Subcommittee's words, "absent" from the vote: Bell, Hartley-Nagle, Powers, Smiley, Tackett.[1] Councilman Weiner noted for the record that no votes were taken during executive session and stated that the Personnel Subcommittee "limited discussion to personnel consistent with the motion made to enter executive session."

DISCUSSION

As an initial matter, we conclude that the Personnel Subcommittee did not violate FOIA by noticing an intent to convene an executive session to discuss "a confidential personnel matter." Indeed, the Delaware Court of Chancery has specifically held that reference to "personnel issues" satisfies FOIA's notice requirements.[2] While our in camera review of the executive session minutes reveals that the Personnel Subcommittee also discussed "[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 . . . when an open meeting would have an adverse effect on the bargaining or litigation position of the public body,"[3] and "documents, excluded from the definition of 'public record' in § 10002 of [FOIA],"[4] the record is clear that those discussions were inextricably intertwined with the noticed personnel matter.[5] As such, while the Personnel Subcommittee's agenda would undoubtedly have been more accurate if it included those specific bases for executive session,[6] we cannot conclude that its failure to include them amounted to a FOIA violation.[7]

We also conclude that the Personnel Subcommittee did not violate FOIA by failing to specifically indicate the possibility of a vote in its agenda. Importantly, the record demonstrates that the Personnel Subcommittee's "vote" was to direct the Council's legal counsel to engage in legal research regarding the Council's options in connection with the noticed personnel matter. Under the circumstances, while it is not clear that a request for the Council's legal counsel to engage in legal research required a vote in the first instance, we are not persuaded that it qualifies as a "major issue expected to be discussed."[8] Thus, while we certainly encourage public bodies to notice the possibility of a vote following an executive session, and there may be circumstances under which we would conclude that a public body's failure to do so amounts to a FOIA violation,[9] we cannot conclude that the Personnel Subcommittee violated FOIA by failing to indicate the possibility of a vote on its agenda here. We nevertheless note that it was not unreasonable for you to believe that the Personnel Subcommittee's "vote" on "the recommendations and discussions that Council collectively had during the executive session" amounted to substantive action.

CONCLUSION

Based upon the foregoing, it is our determination that the Personnel Subcommittee did not violate FOIA as alleged in the Petition.

Very truly yours,

Michelle E. Whalen

APPROVED BY:

Aaron R. Goldstein

State Solicitor

cc: LaKresha S. Roberts, Chief Deputy Attorney General (via email)

Michael Migliore, Counsel to the Council (via email)

[1] The minutes suggest that Councilman Bell did not attend the meeting. However, the minutes also suggest that Councilmembers Hartley-Nagle, Powers, Smiley and Tackett were in attendance at the start of the meeting and during the executive session discussion. While the minutes state that those members were "absent" from the vote, the record is not clear (with perhaps one exception) as to when those individuals became absent. We recommend that the Personnel Subcommittee review and revise its minutes accordingly. See 29 Del. C. § 10002(f).

[2] See O'Neill v. Town of Middletown , 2007 WL 2752981, at 7 (Del. Ch. Mar. 29, 2007) ("Although more precise reasons could have been offered by the Council and the Planning Commission, the reasons they did articulate on the agendas satisfy the FOIA. 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 the agendas what legal, personnel, or other subjects are to be discussed. Therefore, the Court concludes that there is no triable issue of fact regarding the sufficiency of the state reasons for the executive sessions.") (internal citation omitted); see also Del. Op. Att'y Gen. 17-IB31, 2017 WL 3426271, at 2 (July 24, 2017); Del. Op. Att'y Gen. 05-IB26, 2005 WL 3991284, at *7 (concluding that public body's use of the language "Executive Session (Personnel & Legal Issues)" did not violate FOIA's notice requirements).

[3] 29 Del. C. § 10004(b)(4).

[4] 29 Del. C. § 10004(b)(6).

[5] See 29 Del. C. § 10004(b)(9) (providing that a public body may call for an executive session for "[p]ersonnel matters in which the names, competency and abilities of individual employees . . . are discussed").

[6] We nevertheless caution, as the Chancery Court has, that a public body may not use a "general listing of several of the potential grounds for an executive session provided for in § 10004(b)." O'Neill , 2007 WL 2752981, at 7 (citing Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. , 1994 WL 274295, at 10 (Del. Ch. May 19, 1994)); see also 29 Del. C. § 10002(a) ("'Agenda' shall include but is not limited to 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 grounds therefore.") (emphasis added);

[7] Additionally, based upon the available record, we believe that the discussion itself was proper for executive session. However, we recommend that the Council review the Chancery Court's discussion in Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. , 1994 WL 274295, at *11, regarding the permissible scope of discussions held in executive session pursuant to 29 Del. C. § 10004(b)(9).

[8] See 29 Del. C. § 10002(a) (defining agenda as including 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 grounds therefore").

[9] See, e.g., Del. Op. Att'y Gen. 17-IB28, 2017 WL 3426268, at *2 (July 19, 2017) (concluding that Sussex County Council violated FOIA by failing to notice an anticipated vacancy in the top position at the Planning and Zoning Office and its intent to fill the vacancy following an executive session discussion).