Can a school board review scholarship applications behind closed doors if they include student transcripts and parents' tax returns?

Official title

96-IB30: Re: Freedom of Information Act Complaint dated May 30, 1996 Woodbridge School District

Plain-English summary

The same Woodbridge board member who complained about an executive session involving his conduct toward school staff also challenged the board's decision to review applications for the Mary H. Bailey Educational Trust Fund Scholarship behind closed doors. When he asked in open session whether all applicants had met the scholarship criteria, he was told that question couldn't be answered publicly. He argued the board was required to discuss and decide the scholarship openly.

The Attorney General disagreed, because the scholarship applications themselves contained the kind of information the Act specifically shields from public disclosure. Applicants had to submit their academic transcripts and their parents' or guardians' income tax returns to prove they met the scholarship's academic and financial-need criteria. The opinion found transcripts fall within the personal-privacy exemption for "pupil files" and are separately protected from disclosure to non-school personnel under Delaware's school records statute, while tax returns count as confidential financial information and are separately shielded by Delaware's tax-confidentiality statutes. Because discussing the applications necessarily meant discussing the contents of those excluded documents, the board was entitled to confine that discussion to executive session under the Act's exemption for documents excluded from the definition of "public record." The opinion separately noted, without addressing it further, that a related claim about the board excluding the complainant from parts of the process because his own daughters were applicants raised a conflict-of-interest dispute outside the Attorney General's FOIA jurisdiction.

Currency note

This opinion was issued in 1996. 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 school board discuss scholarship applicants' grades and family finances in a closed session?
A: Yes, according to this opinion, when the applications include documents like academic transcripts and parents' tax returns that the Act itself excludes from the definition of a public record, discussing their contents in executive session is permitted.

Q: Why are academic transcripts treated as confidential under Delaware's open-meetings law?
A: The opinion found transcripts fall under the personal-privacy exemption for "pupil files" and are also separately protected from disclosure to non-school personnel by Delaware's school pupil-records statute, so both grounds support keeping their discussion out of public session.

Q: Does the Attorney General decide whether a school board member had a conflict of interest because his own children applied for a scholarship the board oversees?
A: No. The opinion flagged that question as a dispute over conflicts of interest between the board and its member, which falls outside what the Freedom of Information Act's complaint process addresses.

Background and statutory framework

The Woodbridge Board of Education reviews Bailey Scholarship applications under guidelines it developed jointly with Mellon Bank, the trust's trustee, requiring applicants to submit academic transcripts and parental tax returns to demonstrate academic achievement and financial need. Applying 29 Del. C. § 10004(b)(6), which permits an executive session to discuss the content of documents excluded from the definition of "public record" under 29 Del. C. § 10002(d), the AG found transcripts excluded both as "pupil files" under subsection (d)(1) (citing Bowie v. Evanston Community Consolidated School District and the federal Family Educational Rights and Privacy Act) and as records "exempted from public disclosure by statute" under subsection (d)(6), pointing to 14 Del. C. § 4111's bar on disclosing pupil records to non-school personnel. It found tax returns excluded as confidential "financial information" under subsection (d)(2) (citing Seaford Funding v. M & M Associates) and separately protected by Delaware's tax-confidentiality statutes, 30 Del. C. §§ 368 and 1241. Because discussing the applications required discussing these excluded documents, the board's confinement of that discussion to executive session did not violate the Act.

Citations and references

Statutes:

• 29 Del. C. § 10002(d), definition of "public record" and its exclusions
• 29 Del. C. § 10002(d)(1), personnel, medical, and pupil file exemption
• 29 Del. C. § 10002(d)(2), trade secrets and confidential commercial or financial information exemption
• 29 Del. C. § 10002(d)(6), records exempted from disclosure by other statute or common law
• 29 Del. C. § 10004(b)(6), executive session for discussing the content of excluded documents
• 14 Del. C. § 4111, restriction on disclosure of pupil records to non-school personnel
• 30 Del. C. §§ 368 and 1241, confidentiality of tax returns held by state officers or employees

Cases:

• Bowie v. Evanston Community Consolidated School District, 538 N.E.2d 557 (Ill. 1989), on the personal-privacy interest in student test scores
• Seaford Funding v. M & M Associates (Del. Ch. Apr. 9, 1996), on tax returns containing confidential and sensitive information

Source

• Landing page: https://attorneygeneral.delaware.gov/1996/09/25/96-ib30-re-freedom-of-information-act-complaint-dated-may-30-1996-woodbridge-school-district/

Original opinion text

Del. Op. Atty. Gen. 96-IB30 (Del.A.G.), 1996 WL 751549

( concluding that school district did not violate FOIA’s open meeting requirements by convening in executive session to review applications for a scholarship where applications contain student academic records and parent tax returns )

Office of the Attorney General

State of Delaware

Opinion No. 96-IB30

September 25, 1996

Re: Freedom of Information Act Complaint dated May 30, 1996 Woodbridge School District

*1 Mr. Milton F. Morozowich

R.D. 2 , Box 166

Bridgeville, DE 19933

James D. Griffin, Esquire

Griffin & Hackett, P.A.

Mellon Bank Building, # 200

P.O. Box 612

Georgetown, DE 19947

Dear Mr. Morozowich and Mr. Griffin:

This is the Attorney General’s decision on the above referenced complaint filed pursuant to 29 Del. C. § 10005(e) .

By letter dated May 30, 1996, Milton Morozowich alleges that the Woodbridge School District Board of Education (the “Board”) violated the open meeting requirement of the Delaware Freedom of Information Act (“FOIA”) by holding an executive session for the purpose of discussing applications for the Mary H. Bailey Educational Trust Fund Scholarship (the “Bailey Scholarship”). Mr. Morozowich also alleges that, following the executive session, he inquired in open session whether “all applicants unequivocally met the scholarship criteria” and was advised that this matter could not be discussed in public 1 .

The Board contends that it properly confined its discussion of the Bailey Scholarship applications to executive session because such discussion involved the review of confidential documents which are exempt from the definition of “public record” under FOIA. According to the Board’s response, the Board is charged with reviewing applications and recommending qualified persons for the Bailey Scholarship to Mellon Bank, which serves as the Trustee of a trust created under the will of Mary H. Bailey for the purpose of funding the Bailey Scholarship.

In reviewing the applications, the Board follows certain guidelines established by the Board and the Trustee which set forth the application process, the form of application and selection criteria to be considered in recommending potential scholarship recipients. According to the guidelines, the selection criteria for the Bailey Scholarship include academic achievement and financial need. In order to establish that such criteria have been satisfied, applicants for the Bailey Scholarship are required to submit copies of their academic transcripts and their parents’ or guardians’ income tax returns with their applications. The Board contends that such documents are not “public records” under FOIA, and therefore discussion of the Bailey Scholarship applications, which necessarily includes discussion of the content of such documents, should be carried on only in executive session.

For the reasons stated below, we find that the Board did not violate FOIA’s open meeting requirement by confining its discussion of the Bailey Scholarship applications to executive session.

APPLICABLE LAW

Pursuant to 29 Del. C. § 10004(b)(6) , a public body may call for an executive session for the purpose of discussing the content of documents which are excluded from the definition of “public record” under FOIA. Under 29 Del. C. § 10002(d) , documents excluded from the definition of “public record” include:

*2 (1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy;

(2) Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature; …

(6) Any records specifically exempted from public disclosure by statute or common law.

OPINION

We find that the documents discussed by the Board in reviewing the Bailey Scholarship applications fall within the above exclusions to the definition of “public record.” First, there can be no doubt that a student’s academic transcript constitutes part of a “pupil file, the disclosure of which would constitute an invasion of personal privacy.” Section 10002(d)(1) . See Bowie v. Evanston Community Consolidated School District, 538 N.E.2d 557 (Ill. Supr. 1989) (recognizing that public disclosure of individual student’s test scores would violate personal privacy interests). See also Family Education Rights and Privacy Act, 20 U.S.C.A. §1232(g)(5)(A) (recognizing personal privacy interest in a student’s academic records). In addition, a student’s academic transcript is “exempted from public disclosure by statute.” Section 10002(d)(6) . Specifically, 14 Del. C. § 4111 prohibits disclosure to non-school personnel of personal records of pupils, including records regarding grades.

Second, the tax returns of the parents or guardians of the scholarship applicants undeniably constitute “financial information … of a privileged or confidential nature.” Section 10002(d)(2) . See Seaford Funding v. M & M Associates, Del. Ch., C.A.No. 1598-S, Steele, V.C. (April 9, 1996) (stating that tax returns “contain confidential and sensitive information to which the public has no right”). Like student transcripts, tax returns are also protected from public disclosure by statute. See 30 Del. C. §§ 368 and 1241 (prohibiting disclosure of tax returns by any State officer or employee).

Because the Board’s discussion of Bailey Scholarship applications involves discussion of the content of the above mentioned documents, we conclude that the Board did not violate FOIA in confining such discussion to executive session.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Michele C. Gott

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

Footnotes

1

The complaint also alleges that the Board wrongfully denied Mr. Morozowich the opportunity to participate as a Board member in all phases of the scholarship process on the ground that his daughters were scholarship applicants. This allegation does not implicate FOIA. It involves a dispute between the Board and one of its members as to the existence of a conflict of interest. This office has no jurisdiction to resolve such a dispute, and therefore this allegation will not be discussed further.

Del. Op. Atty. Gen. 96-IB30 (Del.A.G.), 1996 WL 751549

End of Document
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