When can a Delaware town go into closed session to talk about rumored potential lawsuits or personnel matters?

Plain-English summary

A South Bethany resident, Billy Bonbright, petitioned the AG over two town meetings (November 8, 2018 and January 29, 2019) where the Town Council went into executive session to discuss matters related to the police department and police chief. The Town claimed the sessions were for litigation strategy and for documents excluded from public record.

The AG split the analysis across the two sessions and three discrete matters discussed at them:

• November 8 session, first matter: The Town claimed potential litigation, but the only basis was a "rumor." The AG held that a rumor is not the "objective indicia" of a "realistic and tangible threat of litigation" that § 10004(b)(4) requires. The Town was directed to discuss the matter in open session in the future.
• November 8 session, second matter: This was actually a personnel matter that could have been discussed in executive session under § 10004(b)(9), but the Town cited the wrong subsection on the agenda. The AG called this a "technical violation" requiring caution but not remediation.
• November 8 session, documents discussion: After in camera review, the AG confirmed the documents were exempt from the public-record definition, so that portion of the executive session was proper.
• January 29 session: After in camera review, the AG found a real and tangible threat of litigation existed and an open meeting would have hurt the Town's litigation position. The session was proper.
• January 29 vote: The Town came back into open session and voted to "proceed with administrative and legal actions discussed" in executive session. The vote was in open session, satisfying FOIA.

The AG also imposed a procedural cap: petitions about open-meetings violations more than six months old are not considered.

Currency note

This opinion was issued in 2019. 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

Q: Can a public body go into executive session because there's a rumor of possible litigation?
A: No. The AG was clear that the potential-litigation executive-session exemption requires "objective indicia" of a "realistic and tangible threat" of litigation. A rumor doesn't meet that standard. Acceptable indicators include written demand letters, notices of intent to sue, or ongoing related litigation.

Q: What happens if a public body cites the wrong executive-session reason on the agenda?
A: The AG calls it a "technical violation" if the discussion would have been proper under a different exemption. Remediation usually isn't required, but the AG cautions public bodies to identify the correct purpose going forward.

Q: How far back can an AG petition reach on an open-meetings claim?
A: As a matter of practice, the AG Office does not consider petitions about alleged open-meetings violations that occurred more than six months prior to the date of the petition.

Q: What is "in camera" review in this context?
A: A private review of confidential materials by the AG's office. When a public body claims executive session was properly used, the AG can require the public body to submit unredacted minutes or other materials in confidence so the AG can verify the claim without making the materials public.

Q: How did the AG verify what happened in the closed sessions?
A: The Town submitted unredacted executive session minutes and other materials to the AG for in camera review. The AG used those minutes to confirm that the documents discussed were exempt records, that a real litigation threat existed at the January 29 session, and that no vote had been taken in executive session.

Q: Can a public body vote in executive session?
A: No. All votes must be taken in open session. The AG verified through the unredacted minutes that no vote was taken in the executive session and the post-session motion was properly made in open session.

Background and statutory framework

This opinion shows how the AG handles a multi-issue FOIA petition with mixed evidence. The Town offered in camera materials, which the AG accepted. Public bodies often resist in camera submission because of the disclosure risk, but it's the most reliable way to defend a contested executive-session claim.

The "rumor" finding is the operative holding. Public bodies sometimes treat any mention of possible litigation as triggering the executive-session exemption, but the opinion applied the strict standard: the indicia must be objective, "a written demand letter, notice of threat to sue, or 'previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims.'" A rumor is not among them.

The "technical violation" framework is also worth understanding. When a public body misidentifies the basis for an executive session, but the discussion would have been proper under a different exemption, the AG considers it a procedural defect not warranting remediation. The rationale is that requiring re-noticing and re-discussing in executive session would be wasteful. The AG cautions the public body to identify the correct subsection in the future, but doesn't force redoing the work.

The six-month limitation is an important practical rule. South Bethany was also accused of older open-meetings violations going back to 2017; the AG declined to consider them. Petitioners need to file promptly.

Citations and references

Statutes:

• 29 Del. C. § 10004(b)(4) (litigation strategy)
• 29 Del. C. § 10004(b)(6) (exempt documents)
• 29 Del. C. § 10004(b)(9) (personnel exemption)
• 29 Del. C. § 10005(e) (petition for AG determination)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/03/11/19-ib11-2-25-2019-foia-opinion-letter-to-mr-billy-bonbright-re-foia-correspondence-regarding-the-town-of-south-bethany/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/02/Attorney-General-Opinion-No.-19-IB11.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB11

February 25, 2019

VIA EMAIL

Mr. Billy Bonbright

[email protected]

RE: FOIA Correspondence Regarding the Town of South Bethany

Dear Mr. Bonbright:

We write in response to your correspondence alleging that the Town of South Bethany violated the open meeting requirements of Delaware 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(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we find that the Town violated FOIA at its November 8, 2018 meeting by holding an executive session purportedly for potential litigation, when the circumstances did not meet the standard of potential litigation. We recommend that this topic be discussed in an open session in the future. We further conclude that the Town committed a technical violation by citing to the potential litigation exception for a second topic, a personnel matter, also discussed during the November 8, 2018 executive session. We caution the Town to comply with identifying the proper purpose in the future. We find that no further violations with respect to the remaining matters challenged in the Petition.

BACKGROUND

On February 5, 2019, you submitted a letter to this Office alleging that the Town of South Bethany violated FOIA's open meeting provisions on several occasions dating back to April 12, 2017. We consider only the two allegations regarding meetings held within the last six months. You allege that on November 8, 2018 and January 29, 2019, the Town held improper executive sessions to discuss its Department of Public Safety and Police Chief out of public view. The agendas for those two meetings state that executive sessions were held for strategy sessions regarding pending or potential litigation and a discussion of documents exempt from the definition of "public record" under FOIA.

The Town submitted a letter ("Response") on February 11, 2019. The Town stated that the November 8, 2018 executive session was necessary to discuss threats of litigation, litigation that the Town might have to initiate, the past context for such possible litigation, potential legal strategies for which counsel's advice was needed, and the content of civil investigatory files, which are exempt from FOIA. The Town asserted it could not further justify the appropriateness of the executive session unless this Office would accept in camera submissions which would contain information that would demonstrate the need for confidentiality. The Town further stated that the discussions of the November 8, 2018 executive session continued at the January 29, 2019 executive session. The Town asserted that there was no discussion of public safety or restricting the resources of the police department, as you alleged. The Town included redacted executive session minutes and an affidavit from the Town Manager attesting to the truthfulness of the Response.

You submitted your Reply to this Office on February 12, 2019. You questioned the veracity of the Town's assertion that public safety had not been discussed in those executive sessions when the redacted minutes reflect a discussion of the police department. You also alleged that the Town voted after the executive session to proceed with the legal and administrative actions discussed, providing the public insufficient notice of the action taken. You asked this Office to find that the Town's executive sessions on November 8, 2018 and January 29, 2019 violated FOIA.

On February 19, 2019, the Town submitted draft redacted minutes of the January 29, 2019 executive session. The Town also provided unredacted minutes and other information to this Office for in camera review.

DISCUSSION

Under FOIA, a public body has the burden of "justify[ing] a decision to meet in executive session." The November 8, 2018 and January 29, 2019 executive sessions presented the same two purposes in their agendas: 1) 29 Del. C. § 10004(b)(4) for "strategy 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;" and 2) 29 Del C. § 10004(b)(6) for "discussion of the content of documents, excluded from the definition of 'public record' in § 10002 of this title where such discussion may disclose the contents of such documents."

The exemption under 29 Del. C. § 10004(b)(4) permits a public body to meet in executive session for strategy sessions 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." The "potential litigation exception for executive session applies only when there is a 'realistic and tangible threat of litigation' based on 'objective factors.'" "Some indicia of such a situation might include a written demand letter, notice of threat to sue, or 'previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims.'"

November 8, 2018 Executive Session

Two matters of potential litigation were discussed during the November 8, 2018 executive session, and we must determine whether the Town appropriately discussed both matters in executive session. We find that the Town has not met its burden of demonstrating that potential litigation was properly asserted for either matter, as one matter is characterized by the Town as involving potential litigation based on a "rumor" and the second matter likewise lacks any objective indicia of realistic and tangible threats of litigation. For the first matter, rumored to involve potential litigation, we recommend that the Town schedule this topic for discussion at a future open session. For the second matter, we find no remediation is required as the factual record demonstrates that the second matter was discussed in executive session properly under FOIA, although not for the purpose stated on the November 8, 2018 agenda. That is, we find that the second matter involved discussions related to "personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." "The personnel exception for executive session was intended to protect the personal privacy of individual employees, and applies only when the discussion reflects on an individual's 'competence or ability.'" Thus, although we find the Town's identification of the incorrect purpose on its agenda is a technical violation of FOIA, the discussions were permitted to take place in executive session under the "personnel" exemption, and we caution the Town to comply with stating the proper purpose of every executive session on its agenda in the future.

Finally, we reviewed in camera the documents discussed in executive session on November 18, 2018 and find that these records are exempt from the definition of "public record" and the executive session was therefore properly noticed insofar as it was noticed to discuss non-public records under 29 Del. C. § 10004(b)(6).

January 29, 2019 Executive Session

We have reviewed the Town's in camera submissions regarding the potential litigation in the January 29, 2019 executive session and find that those discussions were appropriately held in executive session and appropriately noticed as "potential litigation." The potential litigation was a realistic and tangible threat, and the Town provided sufficient facts to conclude that having these discussions in a public forum would have an adverse effect on its litigation position.

We also reviewed the in camera submissions of the documents discussed under 29 Del. C. § 10004(b)(6) and find that these records demonstrate this purpose was properly asserted, as the records are exempt from the definition of "public record."

January 29, 2019 Meeting Vote

Your Petition alleged that the Town noticed an executive session during its January 29, 2019 meeting to "confer and potentially vote" on an item. Your Reply, however, alleged that after returning to open session during the January 29, 2019 meeting, a Councilmember made a motion to "proceed with the administrative and legal actions discussed during the executive session." We have reviewed the unredacted executive session minutes, which do not indicate that a vote took place in executive session. FOIA requires that all votes be taken in open session, and we conclude that the Town met that requirement here.

CONCLUSION

Thus, it is our determination that the Town violated FOIA at its November 8, 2018 meeting by holding an executive session for rumored potential litigation, which is not a proper purpose. We recommend that this topic be discussed in an open session in the future. We also conclude that the Town committed a technical violation by citing to an improper purpose—potential litigation—for a personnel discussion during its November 8, 2018 executive session. We caution the Town to comply with identifying the proper executive session purpose in the future. We find no further violations with respect to the remaining matters challenged in the Petition.

Very truly yours,

/s/ Dorey L. Cole

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Stephani J. Ballard, Esquire, Attorney for Town of South Bethany