Can a school board hold a planning retreat if it labels the meeting as a closed executive session?

Official title

98-IB04: FOIA Complaint Against Appoquinimink School District

Plain-English summary

A resident complained that the Appoquinimink School District held a board retreat on April 4, 1998 in executive session to discuss public business, including things like a failed referendum, a possible year-round school schedule, athletic standards, and grant reviews. The superintendent admitted the district had posted the retreat's notice incorrectly, listing it as a closed executive session rather than an open workshop, and took personal responsibility for the mistake, promising it wouldn't happen again. The AG found this was a real FOIA violation on two counts: labeling the meeting as an executive session discouraged the public from attending a discussion of significant public business, and none of the topics discussed actually qualified for executive session under FOIA's personnel or litigation exceptions. It didn't matter that no formal vote was taken at the retreat, or that the mislabeling was an administrative mistake rather than the board's own doing; a public body is still responsible for the notices given in its name. Even so, the AG ordered no remedy. The board hadn't acted on anything from the retreat, the superintendent had already reported on what was discussed at the next regular, properly noticed board meeting, giving the public a chance to weigh in, and any future action on those topics would still require its own public notice and comment opportunity.

Currency note

This opinion was issued in 1998. 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 hold a planning retreat and simply call it an executive session to keep it closed?
A: No, according to this opinion. FOIA only allows executive session for specific authorized reasons, like personnel or litigation; a general planning retreat covering topics like scheduling and grants didn't qualify, regardless of what the notice called it.

Q: Does it matter whether the board or the administrative staff made the mistake in posting a meeting notice?
A: No. The AG found it irrelevant whose fault the defective notice was; what mattered was that the public was discouraged from attending a meeting where important public business was discussed.

Q: If no vote was taken at an improperly closed meeting, does that mean there's no FOIA violation?
A: No. The AG found it "irrelevant whether any official action was taken," reaffirming that the open meeting law covers meetings held to discuss public business, not just meetings where a formal decision is made.

Q: If a public body admits a mistake and later reports on the closed meeting in public, does that avoid any required remedy?
A: It can, based on this opinion. The AG declined to order any remedy because the board took no action from the retreat and later publicly reported on what was discussed, giving residents a chance to comment before anything was decided.

Background and statutory framework

The complaint centered on Appoquinimink's April 4, 1998 board retreat, posted as a closed executive session even though the topics discussed, including referendum planning, scheduling, and grants, did not fall within FOIA's authorized grounds for executive session under 29 Del. C. Section 10004(b)(4) (pending or potential litigation) or Section 10004(b)(9) (personnel matters). Applying The News Journal Co. v. McLaughlin for the principle that FOIA's open-meeting requirement covers meetings to discuss public business generally, not only meetings where formal action is taken, the AG found the mislabeled notice violated FOIA regardless of whether the board or district administration was responsible for the error. Because the board took no action on the retreat topics and later reported on them at a subsequent, properly noticed public meeting, the AG found no remedy necessary, while putting the district on notice that future workshops must be correctly noticed as open unless a topic genuinely falls within an executive-session exception.

Citations and references

Statutes:

• 29 Del. C. Section 10004(b)(4), executive session exception for pending or potential litigation
• 29 Del. C. Section 10004(b)(9), executive session exception for personnel matters

Cases:

• The News Journal Co. v. McLaughlin, 377 A.2d 358, 362 (Del. Ch. 1977), on FOIA covering meetings to discuss public business, not just meetings to take formal action

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/05/20/98-ib04-foia-complaint-against-appoquinimink-school-district/

Original opinion text

May 20, 1998

New Castle County – Civil Division

Mr. D. Wood

330 Union Church Road

Townsend, DE 19734

RE: Freedom of Information Act Complaint

Against Appoquinimink School District

Dear Mr. Wood:

By letter dated April 14, 1998 (received by this Office on April

20, 1998), you alleged that the Appoquinimink School District

(“the School District”) had violated the Delaware Freedom of

Information Act, 29 Del. C. Sections 10001-10005 (“FOIA”), by

holding a retreat workshop in executive session on April 4, 1998

where public business was discussed.

By letter dated April 21, 1998, we asked the School District for

its response to your complaint. By letter dated May 1, 1998,

Superintendent Marchio confirmed that the Appoquinimink Board of

Education held a retreat workshop on April 4, 1998 “to do

creative thinking and planning for the school district.” The

minutes of the April 7, 1998 meeting of the School Board state

that the following matters were discussed at the retreat: (1)

the consequences of a failed referendum; (2) a year-round school

schedule; (3) the need to develop a comprehensive vocational and

career development program and tracking system; (4) reporting

requirements for the human resource department; (5) raising

standards for athletic participation; (6) recruitment; (7)

electrical rates; (8) common terms for curriculum, instruction

and policy; and (9) review of grants.

Mr. Marchio states in his letter that “no official action was

taken by the board” at the April 7, 1998 meeting on the basis of

his report of the matters discussed at the April 4 retreat. He

further stated: “The district did err, however, in how the

workshop was posted in the newspaper. It should have been posted

as a workshop open to the public. Instead, it was posted as a

closed executive session.” According to Mr. Marchio, “this was

not done intentionally, and I can assure you that future

workshops will be advertised correctly. . . . The posting and

advertising of meetings is a responsibility of the district

office administration not the board of education, and the error

that has occurred here clearly belongs to me. I can assure you

that this error will not be repeated.”

STATUTORY PROVISIONS

Section 10004 of FOIA requires that every meeting of a public

body “shall be open to the public except those closed” for a

purpose authorized by statute for executive session. Although

the notice FOIA authorizes a public body to go into executive

session to discuss personnel matters (Section 10004(b)(9)), or

to discuss pending or potential litigation (Section

10004(b)(4)), at the April 4, 1998 retreat the School Board did

not in fact discuss legal and personnel issues but rather

discussed other matters of public business.

OPINION

The School District has admitted that it violated FOIA by giving

improper notice of its April 4, 1998 retreat. By stating in the

notice that the retreat would be “a closed executive session,”

the School District deprived the public of an opportunity to

attend and speak out on matters of important public interest. It

is irrelevant whether any “official action” was taken at the

retreat. The open meeting law “applies to meetings called to

discuss public business as well as to meetings called to take

action on public business.” The News Journal Co. v. McLaughlin,

Del. Ch., 377 A.2d 358, 362 (1977) (Brown, V.C.).

Whether the error in the posting of the notice was the fault of

the district office administration or the board of education is

also irrelevant. The important point is that a public body held

a meeting to discuss matters of important public interest; the

public not only was not invited, but was discouraged from

attending by noticing the meeting as an executive session. If

the board relies on the district office administration to post

notice, and that notice is defective, then the meeting of the

board was in violation of law and may be deemed invalid.

As for remediation of this violation of law, we do not believe

that it would be appropriate, under the circumstances, to direct

the School Board to meet again. As Mr. Marchio points out, the

board members “gave up a Saturday of their own time to better

fulfill their responsibilities as board members.” Moreover,

since the School District does not appear to have taken any

action on the matters discussed at the retreat, presumably the

public will have a further opportunity for input before the

School District takes any action. If, however, the School

District were to take action on any of the matters discussed at

the retreat, the School District would have to give notice to

the public and an opportunity to comment at a public meeting

before taking action.

Conclusion

For the foregoing reasons, we determine that the School District

violated FOIA by: (1) stating in the posted notice that the

retreat workshop would be held in executive session, thereby

conveying the message to the public that they could not attend;

and (2) meeting in executive session for a purpose not

authorized by law. We do not feel that any remediation is

necessary, however, for two reasons. First, at the next meeting

of the School District on April 7, 1998, Mr. Marchio reported on

the matters discussed at the retreat workshop. Since that

meeting was publicly noticed, the public had an opportunity to

comment. Second, the School Board did not take any action based

on what happened at the retreat workshop.

While we agree with the School District that workshops can be

“useful and productive,” they should be noticed and open to the

public unless the topic to be discussed falls within a

statutorily authorized ground for executive session. The School

District has represented “that future workshops will be

advertised correctly.” The School District is on notice that the

requirements of the open meeting law must be strictly followed

in the future.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady, Attorney General

Keith R. Brady, Chief Deputy Attorney General

Tony J. Marchio, Superintendent

Chrystyna Lafferty, Opinion Coordinator