Is it a FOIA violation if a public body briefly strays into an improper topic during executive session but stops as soon as someone objects?

Official title

98-IB09: FOIA Complaint: Woodbridge School District

Plain-English summary

A school board member complained that Woodbridge's board improperly discussed five separate topics in executive session at a July 28, 1998 meeting: a secretarial position, an assistant principal position, junior varsity football, the student code of conduct, and cafeteria contracting. The AG cleared the district on every point. Two personnel items (the secretarial and assistant principal positions) fit squarely within FOIA's exception for discussing individual employees' competence and abilities. The cafeteria item turned out to be a discussion of contract negotiations for trash removal, which FOIA also allows to stay closed as a labor-negotiations matter. The student code of conduct briefly came up, but the board's own attorney immediately flagged it as inappropriate for executive session and the discussion stopped right there; the AG found no violation because the topic was caught and cut off in time, and public bodies shouldn't be punished for policing themselves. On the junior varsity football item, the AG noted some uncertainty about whether the closed-door discussion crossed a line, but pointed out that the complaining board member himself had proposed the underlying contingency budget, making it inappropriate for him to now challenge the validity of his own action. Finally, the AG found the agenda's simple listing of "Personnel" and "Negotiations" gave adequate notice, since the actual executive-session discussion matched those two categories.

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: If a public body briefly starts discussing an improper topic in executive session, is that automatically a FOIA violation?
A: Not necessarily, according to this opinion. The AG found no violation where the board's own counsel flagged the improper topic and the discussion stopped immediately, reasoning that self-correction should be encouraged rather than punished.

Q: Can a school board discuss contract negotiations for services like trash removal in executive session?
A: Yes. The AG found that labor and contract negotiations fall within FOIA's exception for labor-negotiation matters, separate from the personnel exception for individual employees.

Q: Can a board member who proposed an action later challenge that same action as a FOIA violation?
A: The AG suggested no, at least where the member's own conduct raised the question. It declined to find a violation regarding a budget item the complaining member himself had sponsored.

Q: Does an agenda have to list every specific topic that might come up in executive session?
A: Not necessarily. The AG found a general "Personnel" and "Negotiations" listing adequate here because the actual discussion matched those broad categories, without needing to name each individual position or contract involved.

Background and statutory framework

The complaint concerned five topics discussed in a July 28, 1998 Woodbridge School District executive session, evaluated against 29 Del. C. Section 10004(b)(9)'s personnel exception and Section 10004(b)(6) together with Section 10002(d)(7)'s exception for labor negotiations and collective bargaining records. Applying Common Cause of Delaware v. Red Clay Consolidated School District for the principle that a public body risks drifting into improper topics during executive session but avoids a violation if the drift is caught and the discussion ceases immediately, the AG found no violation in the brief student code of conduct discussion that the board's attorney cut short. The personnel and cafeteria-contract items fit within the statutory exceptions, and the football-related budget item raised uncertainty that the AG declined to resolve against the very board member who had proposed it. On the agenda notice question, the AG found the general "Personnel" and "Negotiations" listing adequate because it matched what was actually discussed.

Citations and references

Statutes:

• 29 Del. C. Section 10002(d)(7), exemption for records involving labor negotiations or collective bargaining
• 29 Del. C. Section 10004(b)(6), executive session exception for labor negotiations
• 29 Del. C. Section 10004(b)(9), executive session exception for the names, competency, and abilities of individual employees

Cases:

• Common Cause of Delaware v. Red Clay Consolidated School District, 1995 WL 733401 (Del. Ch. Dec. 5, 1995), on curing a drift into improper executive-session topics by stopping the discussion immediately

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/09/25/98-ib09-foia-complaint-woodbridge-school-district/

Original opinion text

September 25, 1998

Civil Division – Kent County

Mr. Milton F. Morozowich

R.D. 2, Box 166

Bridgeville, DE 19933

RE: Freedom of Information Act Complaint

Against Woodbridge School District

Dear Mr. Morozowich:

This letter is our written determination in response to your

letter of July 29, 1998 (received by this Office on August 5,

1998) alleging that the Woodbridge School District (the “School

District”) violated the Freedom of Information Act, 29 Del. C.

Sections 10001-10005 (“FOIA”).

You claim that the School District discussed five matters in

executive session at a meeting on July 28, 1998 which are not

authorized by FOIA. Those matters were: (1) Secretarial – Central

Office; (2) WES Assistant Principal; (3) J.V. Football; (4)

Student Code of Conduct; and (5) Cafeteria.

By letter dated August 6, 1998, we asked the School District to

respond to your complaint within ten days. The School District

asked for an extension of time to respond, which we granted. By

letter dated August 28, 1998, the School District responded to

your allegations, denying any violation of FOIA. The School

District provided us with copies of a Memorandum dated July 28,

1998 from Dr. Kevin E. Carson to Dr. Robert C. Sutton (personnel

recommendations for the July 28, 1998 meeting), the agenda posted

for the meeting, and the minutes of that meeting and the

executive session.

The School District acknowledges that FOIA does not authorize a

public body to go into executive session to discuss a subject

like a student code of conduct. The School District points out,

however, that shortly after the subject came up, “Dr. Sutton

advised the Board that the topic was not appropriate for

executive session, at which time the discussion ended.”

As the Chancery Court has noted, “[t]here is always a risk that a

public body will drift into discussing matters beyond the proper

purpose of an executive session.” Common Cause of Delaware v. Red

Clay Consolidated School District, Del. Ch., 1995 WL 733401, at

p. 3 (Dec. 5, 1995) (Balick, V.C.). But there is no FOIA

violation if this is brought to the public body’s attention in

time, and “discussion of that subject would immediately cease.”

Id. We agree with the School Board that “a public body should be

encouraged, rather than punished, for attempting to curtail

inappropriate discussions in executive session.” We find no

violation of FOIA in the limited, immediately curtailed,

discussion of a student code of conduct.

Two of the matters discussed during the executive session on July

28, 1998 (“Secretarial-Central Office” and “WES Assistant

Principal”) fall within the “personnel” exception under FOIA, 29

Del. C. Section 10004(b)(9) (discussion of the “names, competency

and abilities of individual employees”). The reference to

“Cafeteria” was a discussion of contract negotiations for trash

removal. Labor negotiations are a proper subject for executive

session. See 29 Del. C. Sections 10004(b)(6) and 10002(d)(7)

(exemption records “involving labor negotiations or collective

bargaining”).

As for “J.V.Football,” it is not clear whether that subject fell

within the personnel exception since we do not know if the School

District was considering any specific coaches at the time. The

minutes of the meeting state that you made motion “to consider a

Contingency Budget for Junior Varsity Football and hire an

Assistant Coach with the guarantee of 50% salary if program does

not make; with an option to go to Varsity if programs does not

make.” If there were some discussion of this contingency budget

during executive session, then that may have violated FOIA. But

since you were the member of the School District who sponsored

the contingency budget, we do not think it appropriate at the

same time for you to challenge the validity of action you took.

Finally, you suggest in your complaint letter that the agenda

posted for the July 28, 1998 meeting failed to give proper notice

of the subjects for executive session. The agenda listed two

subjects: “Personnel” and “Negotiations.” Having reviewed the

minutes of the meeting, we find that the discussion during the

executive session on July 28 dealt with personnel matters and

contract negotiations. The notice provided, therefore, was not

deficient or misleading.

Conclusion

Based on your complaint, the School District’s response, and the

documents provided to us, we determine that the School District

did not commit any violation of FOIA in connection with the July

28, 1998 meeting.

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, Esquire

Chief Deputy Attorney General

James D. Griffin, Esquire

Chrystyna L. Savitz

Opinion Coordinator