If a city releases executive-session minutes to one citizen, does it have to give the same minutes to anyone else who asks?

Official title

98-IB14: FOIA Complaint-City of Newark

Plain-English summary

A former Newark council member had already won a Court of Chancery ruling that part of a June 1997 executive session, a candid discussion the city called "Council Protocol," wasn't really a personnel matter and should have been open to the public. After that ruling, the city released the "Protocol" pages of the minutes, but when the former council member asked for the remaining, personnel-related pages of the same executive session, the city refused. Then another citizen made a similar request for those personnel pages, and the city's council voted to release them to her. The city argued the former council member hadn't properly triggered a vote on releasing her copy the way the other citizen had, framing this as a difference in how each person "asked." The AG rejected that distinction as untenable: FOIA doesn't require a citizen to use any particular words or formally demand a vote to trigger a public body's disclosure procedures; simply requesting the record is enough. Because the city's own council had already decided that disclosing those pages wouldn't compromise anyone's privacy or defeat the purpose of the executive session, by releasing them to one citizen, the records became public for everyone, and withholding the identical pages from the person who asked first was a FOIA violation. The AG declined to rule on two other executive-session meetings from mid-1997, since there was no evidence those had been selectively disclosed to anyone else, but ordered the city to hand over the June 9, 1997 minutes within thirty days.

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: Does a citizen have to formally request a public vote to get a public body to release executive-session minutes?
A: No, according to this opinion. The AG found that a plain request to inspect or copy records is enough to trigger a public body's normal disclosure procedures; a citizen doesn't need to use particular legal language or specifically ask for a vote.

Q: If a court rules that part of an executive session wasn't really about personnel, does that automatically make the minutes public?
A: Yes for that portion. The AG noted the Court of Chancery had already found the "Council Protocol" discussion in this case was public business, not personnel, meaning those minutes were public records available to any citizen who asked.

Q: Can a public body release the same records to one citizen but withhold them from another?
A: No, according to this opinion. Once a public body decides that disclosing certain minutes will no longer defeat the purpose of the executive session and releases them to anyone, the AG found those records become public for all purposes, and selective disclosure is not permitted.

Q: Does a public body have to release minutes of every executive session just because it released some?
A: Not necessarily. The AG declined to rule on two other executive-session meetings from the same year because there was no evidence the city had disclosed those particular minutes to anyone else, so no selective-disclosure problem was shown for them.

Background and statutory framework

The dispute followed Turner v. City of Newark, in which the Court of Chancery held that the "Council Protocol" portion of a June 9, 1997 executive session, candid discussion among council members about conduct and public perception, was "public business" under FOIA rather than a personnel matter exempt under 29 Del. C. Section 10004(b)(9), even though other portions of the same session properly fell within the personnel exception. Under Section 10002(d)(10), records of executive-session discussions are excepted from the definition of "public record" only to the extent the session was properly held under Section 10004(b) or (c), and under Section 10004(f) a public body retains discretion to release such records once disclosure would no longer "defeat the lawful purpose" of the session. Applying the principle from Black Panther Party v. Kehoe that once an agency exercises its discretion to disclose, "public inspection follows" and selective disclosure to some requesters but not others is impermissible, the AG found Newark's release of the personnel-portion minutes to one citizen, after concluding disclosure would no longer compromise anyone's privacy, obligated the city to provide the identical minutes to the earlier requester as well, regardless of differences in how each person phrased their request.

Citations and references

Statutes:

• 29 Del. C. Section 10002(d)(10), exception for records of properly-held executive-session discussions
• 29 Del. C. Section 10004(b)(9), personnel exception for executive session
• 29 Del. C. Section 10004(f), discretion to disclose executive-session minutes once disclosure would no longer defeat the session's purpose

Cases:

• Turner v. City of Newark, C.A. No. 15787 (Del. Ch. Mar. 17, 1998), holding that "Council Protocol" discussion was public business, not a personnel matter
• Black Panther Party v. Kehoe, 42 Cal. App. 3d 645 (1974), on the prohibition against selective disclosure once an agency exercises its discretion to release records

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/12/17/98-ib14-foia-complaint-city-of-newark/

Original opinion text

December 17, 1998

Kent County – Civil Division

Ms. Nancy H. Turner

176 West Main Street

Newark, DE 19711

RE: Freedom of Information Act Complaint  Against City of Newark

Dear Ms. Turner:

This is the Attorney General’s written determination in response

to your letter dated August 19, 1998 (received by this Office on

August 26, 1998) alleging that the City of Newark (the “City”)

violated the Freedom of Information Act, 29 Del. C. Sections

10001-10005 (“FOIA”). Specifically, you allege that the City

denied you the right to copy the minutes of an executive session

held on June 9, 1997. You further allege that the City allowed

another citizen, Alice Shurtleff, to copy these same records.

By letter dated September 28, 1998, we asked the City to respond

to your complaint but to limit its response to two questions: (1)

Whether the City provided other citizens with access to the

minutes of the June 9, 1997 executive session; and (2) How does

the City decide, as a matter of general practice, whether it will

disclose minutes of executive session to the public.

By letter dated September 29, 1998, you asked us to clarify

between reasonable access to public records, and the opportunity

to copy records. You pointed out that, as a Council member, you

had access to minutes of executive sessions, but that the City

would not let you copy them. By letter dated October 2, 1998, we

clarified this point for purposes of the City’s response to your

complaint.

By letter dated October 5, 1998, we received the City’s response.

The City noted that the minutes of the executive session on June

9, 1997 was the subject of recent litigation, Turner v. City of

Newark, Del. Ch., C.A. No. 15787 (Mar. 17, 1998) (Chandler, C.).

The City contends that you did not “move or request that the

Council vote on public disclosure of the ‘non-protocol’ personnel

matters discussed on June 9, 1997” after the Chancery Court ruled

in your favor. In contrast, another citizen, “Ms. Shurtleff made

a formal request for the minutes. That request was placed before

City Council. On July 27, 1998, the Council determined that

public disclosure of the requested portions of the minutes would

no longer defeat the lawful purpose for which the session was

called under 29 Del. C. Section 10004(f).” The City maintains

that its general practice is to consider requests for disclosure

of minutes of executive session on a case-by-case basis. “[T]he

Council acts on such request [by a citizen] or motion [by a

Council member] after consulting with its attorney.”

By letter dated October 7, 1998, the City further responded to

your claim that you were denied the right to copy minutes of

executive session. “In order to preserve the integrity and

confidentiality of Executive Session minutes, the Secretary has

adopted a practice of not distributing personal copies to Council

Members. Until and unless the Council has made a determination

that public disclosure will no longer ‘defeat the lawful purpose’

of an Executive Session, the Secretary does not permit any Member

of Council to have a personal file copy of a set of Executive

Session minutes.” The City stated “that Ms. Turner has been

provided nothing more nor less than her former colleagues on the

Council in regard to access.” The City distinguishes between Ms.

Turner’s position as a Council member, to which she is entitled

to “access,” and her position as a citizen to inspect and copy

records for whatever use. The City characterizes the FOIA

complaint, not as an “access” issue, but rather as a complaint

“about a procedure which the City of Newark has adopted to

attempt to maintain the integrity of Executive Session materials

while permitting controlled access to Council Members upon

request.”

By letter dated October 12, 1998, you replied to the City’s

October 5, 1998 response. You dispute what the City claims as its

historical practice of voting to decide whether to honor a

request (from a citizen) or a motion (from a Council member) to

release minutes of executive session. You stated that the City’s

stated practice was “boldly inconsistent” with the way in which

the City had handled a request, one year earlier, from another

citizen (Mr. Alfred Tarrant).

The Chancery Court Litigation

On July 1, 1997, you sued the City of Newark for violating FOIA

by going into executive session on June 9, 1997 to discuss

matters that were not authorized by statute. The Court found that

certain of the matters discussed clearly fell within the

“personnel” exception for executive session: (1) the hiring of a

new City Assistant Administrator; (2) the Police Chief’s possibly

taking a new job out-of-state; and (3) interviews for a new City

Finance Director. At issue was whether the portion of the

executive session, described as “Council Protocol,” was a

“personnel” matter. That portion of the meeting “involved a

lengthy and candid discussion among the Mayor and certain Council

members over the words and actions of other members of the

Council and the public perception of Council performance. This

discussion included personal criticisms, by some members of the

Council, of the motivations of other members. This discussion

evidently arose in part because of one councilman’s concerns

about a potential nominee to the City’s Ethics Board.” Letter

Opinion at p. 3.

The Chancery Court rejected the City’s argument that the

“Protocol” portion of the executive session fell within the

“personnel” exception to FOIA. The Court found that during the

“Protocol,” no personnel file “was discussed or circulated among

Council members . . . And certainly no disclosures of

confidential information about individual members of the Council

or employees of the City occurred . . . .” Letter Opinion at pp.

6-7. The discussion during the Protocol “easily qualified” as

“‘public business.’ Council members were engaged in a frank

debate over a matter of public policy about which members of the

public have a right to be informed as a means both to observe the

performance of their public officials and, perhaps, to better

understand the decisions that they make.” Letter Opinion at p. 7.

The Chancery Court believed that the “members of the Council

acted honestly and in good faith in convening the executive

session and in undertaking a discussion of both personnel issues

and Council protocol issues.” Letter Opinion at pp. 8-9.

Nevertheless, the Court held that “the non-personnel matters

discussed during the executive session were ‘public business’ and

should have been discussed fully and openly during the June 9

meeting.” Id. at p. 9.

Pertinent Statutes

FOIA excepts from the definition of “public record” any “record

of discussions held in executive session pursuant to subsections

(b) and (c) of Section 10004 of this title; . . . .”

29 Del. C. Section 10002(d))(10). Subsection (b) of Section 10004

authorizes a public body to go into executive session for any of

nine reasons, including “personnel matters.” See 29 Del. C.

Section 10004(b)(9).

In the Chancery Court litigation, the Court demarcated what

portions of the June 9, 1997 executive session were within the

“personnel” exception under FOIA. The Council “Protocol” portion

of the meeting was not within that exception, so any minutes of

that portion of the meeting are “public records” under FOIA and

must be made available for inspection and copying upon request by

a citizen.

As for the portion of the minutes dealing with “personnel”

matters, a public body has discretion under FOIA to make minutes

of executive session available to the public if it determines

that public disclosure would no longer “defeat the lawful purpose

for the executive session.” 29 Del. C. Section 10004(f).

Legal Analysis

It is difficult to segregate the FOIA issue raised by your

complaint from the procedure by which the Council, historically

or on ad hoc basis, decides whether to release minutes of

executive session to the public. The City argues that its

policies and procedures regarding the release of confidential is

not governed by FOIA because the City has discretion to decide

whether disclosure of the minutes of an executive sessions would

no longer “defeat the lawful purpose for the executive session.”

Irrespective of the Council’s procedural requirements, however,

FOIA is implicated if the process works to deny any citizen

reasonable access to records that can be disclosed under FOIA.

Your request for the minutes of the June 9, 1997 meeting was

forestalled by the Chancery Court litigation until the Court

ruled in your favor on March 18, 1998. The City then decided to

release the pages of the minutes of the “Protocol” section of the

June 9, 1997 meeting. On March 31, 1998, you then renewed your

request for the minutes, not only for the “Protocol” portion, but

also for the portion dealing with personnel matters. Under

Section 10004(f) of FOIA, the City had discretion to release the

section of minutes regarding personnel matters if it believed

that the personal privacy of the individual(s) involved would not

be compromised. You also asked for the minutes of executive

sessions held on July 14 and September 22, 1997. Those minutes

were not at issue in the Chancery Court litigation.

By memorandum dated March 31, 1998, the City Secretary denied

your request for the minutes of the three executive sessions,

citing a memorandum dated June 18, 1997 (“[o]nce Council as a

whole, and/or its legal counsel, decides the release of these

minutes will not compromise the confidential nature of the topic

discussed, I will then release them as directed”). Apparently, it

is the City’s position that it was then incumbent upon you to

cause the Council to place on its agenda a vote to decide whether

to release the minutes of the June 9, 1997 meeting per your

request under FOIA.

Subsequently, another citizen, Helen Shurtleff, made a request

for the personnel portions of the June 9, 1997 executive session

minutes. At its meeting on July 27, 1998, the Council voted

unanimously to release to Ms. Shurtleff the first four pages of

the minutes dealing with personnel matters.

FOIA does not prescribe any procedures by which a public body

determines whether disclosure of the minutes would “no longer

defeat the purpose” of the executive session. Since the decision

is discretionary, a public body could, as long as the need for

protection of the records exists, follow a uniform rule of not

disclosing the minutes of executive session under any

circumstances. However, once the public body determines that

disclosure would no longer defeat the purpose of the executive

session and that the record may be publicly disclosed,

availability must be permitted in a consistent and fair manner.

“When the agency exercises its permissive disclosure authority,

public inspection follows.” Black Panther Party v. Kehoe, 42

Cal.App.3d 645 (1974). The public records laws do not permit a

government agency “to indulge in selective disclosure . . .

Records are completely public or completely confidential. The

Public Records Act denies public officials any power to pick and

choose the recipients of disclosure.” Id. at 656.

The City tries to distinguish between Ms. Shurtleff, who it

claims “made a formal request for the minutes” of the June 9,

1997 meeting, and you, who did not “move or request that the

Council vote on public disclosure of the ‘non-protocol’ personnel

matters discussed on June 9, 1997.” This distinction is

untenable. FOIA only requires a citizen to request reasonable

access to inspect and copy records. If a request is made to copy

minutes of an executive session, it is not incumbent upon the

citizen to frame that request using particular words of art or to

ask for a vote by the public body to decide whether disclosure

would “no longer defeat” the purpose of the executive session.

The FOIA request itself triggers the requirement that the public

body follow its normal procedures to determine whether the

records may be made available to the public.

We do not find anything in the record provided to us to show that

your request for the minutes of the January 9, 1997 executive

session was any different than Ms. Shurtleff’s. Once the Council

decided to release the complete minutes to Ms. Shurtleff, the

minutes became a public record for all purposes and should have

been provided to you as well.

We do not decide the question of access to or for copies of the

minutes of the executive session meetings on July 14 and

September 22, 1997. There is no evidence in any of the documents

submitted to our office in connection with this complaint to

suggest that the reason for going into executive session on those

dates was not authorized by statute, or that the City has

released copies of the minutes of those two meetings to any other

citizen. In fact, the city secretary’s memorandum of March 31,

1998 incorporates a June 18, 1997 memorandum to you setting forth

the policy and procedure which must be followed to obtain public

access to the minutes. Since the Council has not voted in

accordance with its policy to make those minutes public, there is

no FOIA violation as to the Council’s refusal to provide the

minutes of the meetings of July 14 and September 22, 1997 to you.

Conclusion

Based on your complaint, the City’s responses, your reply, and

the documents provided to us by both parties, we determine that

the City violated the public records provisions of FOIA by not

providing you with a complete copy of the minutes of the

executive session held on June 9, 1997 after the Chancery Court

issued its Letter Opinion dated March 17, 1998, in light of the

Council’s decision to make the same minutes available to Ms.

Shurtleff. To remedy that FOIA violation, we direct the City to

provide you with a copy of those minutes within thirty days of

the date of this letter.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Roger A. Aiken, Esquire

Chrystyna Savitz

Opinion Coordinator