Can a county council fold its executive session minutes into the minutes of the open portion of the same meeting?

Official title

02-IB02: FOIA Complaint Against Sussex County Council

Plain-English summary

A resident asked Sussex County Council for the minutes of a six-minute executive session held on July 17, 2001 to discuss land acquisition, and the county said there weren't any separate minutes; the public minutes of the overall meeting simply noted that the council voted to go into executive session, discussed "matters relating to land acquisition," and voted to come back out. The AG found this fell short of FOIA's requirements. The statute distinguishes between minutes of the open portion of a meeting, which are public records, and minutes of executive session, which stay confidential only as long as disclosure would defeat the purpose of the closed session. If a public body could simply lump both types of minutes together into one public document, that separate protection for executive-session minutes would serve no purpose at all. Since the county was preparing separate executive-session minutes for the first time in response to this complaint, the AG offered guidance on what belongs in them: they don't need the same level of detail as a full narrative summary, but they do need enough substance for the AG's office to review them privately and confirm the topic discussed was one FOIA actually allows behind closed doors, since without that, investigators might have to resort to deposing individual council members to reconstruct what happened. The AG noted an interesting wrinkle: while an agenda can describe a topic generally, like "land acquisition" without naming a specific parcel, the executive-session minutes themselves may need more specificity, potentially even identifying the individual involved in a personnel matter, to allow for a meaningful after-the-fact review. Because nothing suggested the county actually discussed anything improper in that six-minute session, and because reconstructing the details of a brief meeting six months later would be impractical, the AG found no remedy necessary, but directed the county to start keeping separate executive-session minutes going forward.

Currency note

This opinion was issued in 2002. 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 public body have to keep separate minutes for the closed, executive-session portion of a meeting?
A: Yes, according to this opinion. The AG found that folding executive-session content into the public meeting minutes would make FOIA's separate confidentiality protection for executive-session minutes meaningless, so the two must be kept apart.

Q: How detailed do executive-session minutes have to be?
A: According to this opinion, they don't need a full narrative summary of everything discussed, but they must contain enough detail for the Attorney General's office to privately confirm the topic was actually one FOIA allows to be discussed in executive session.

Q: If an agenda can describe a topic generally, like "land acquisition," can the executive-session minutes use the same general language?
A: Not necessarily, based on this opinion. The AG suggested minutes may need more specificity than the agenda, potentially naming the individual involved in a personnel matter, since the minutes serve a different purpose: letting reviewers verify what was actually discussed.

Q: What happens if a public body never kept separate executive-session minutes and gets asked for them months later?
A: In this opinion, the AG found no remedy necessary given the impracticality of reconstructing a brief, months-old meeting from memory, but directed the county to maintain separate executive-session minutes for every future closed session.

Background and statutory framework

The complaint concerned Sussex County Council's failure to maintain minutes of a July 17, 2001 executive session on land acquisition separate from the minutes of the meeting's public portion. Applying 29 Del. C. § 10004(f), which requires minutes of all meetings including executive sessions while exempting executive-session minutes from public disclosure only so long as disclosure would defeat the session's lawful purpose, the AG relied on Keeler v. Harford Mutual Insurance Co. for the statutory-construction principle that a law should be read to give effect to every part and leave no provision superfluous, reasoning that the separate exemption for executive-session minutes would be meaningless if such minutes could simply be merged into the public record. Drawing on Common Cause of Delaware v. Red Clay Consolidated School District Board of Education for the point that "bare-bones" executive-session minutes can force investigators to depose individual members to reconstruct what occurred, the AG directed the county to maintain separate executive-session minutes going forward, detailed enough to support an in camera review, while finding no remedy necessary for the specific six-minute session already past.

Citations and references

Statutes:

• 29 Del. C. § 10004(f), requirement to maintain minutes of meetings, including a qualified exemption for executive-session minutes

Cases:

• Keeler v. Harford Mutual Insurance Co., 672 A.2d 1012, 1016 (Del. 1996), on giving effect to every part of a statute and leaving no provision superfluous
• Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, C.A. No. 13798 (Del. Ch. Dec. 5, 1995), on the consequences of inadequate executive-session minutes

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/01/14/02-ib02-foia-complaint-against-sussex-county-council/

Original opinion text

Civil Division-Kent County January 14, 2001 02-IB02

Mr. Daniel J. Kramer

8041 Scotts Store Road

Greenwood, DE 19950

Re: Freedom of Information Act Complaint Against Sussex County Council

Dear Mr. Kramer:

On December 3, 2001, our Office received your Freedom of Information Act (“FOIA”) complaint against the Sussex County Council (“the Council”) alleging that the Council violated the public record requirements of FOIA by failing to provide you with minutes of an executive session held on July 17, 2001.

By letter dated December 4, 2001 we asked the Council to respond to your complaint within ten days. We granted the request of the Council’s attorney for an extension of time because of the holidays, and received the Council’s response on January 4, 2002.

According to the Council, the minutes of the executive session on July 17, 2001 to discuss “land acquisition” are subsumed in the minutes of the public portions of that meeting, which were provided to you. The public minutes show that: the Council voted in public to go into executive session; the Council remained in executive session for six minutes; “[m]atters relating to land acquisition were discussed”; and the Council voted to go out of executive session.

Relevant Statutes

FOIA requires public bodies like the Council to “maintain minutes of all meetings, including executive sessions conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record.” 29 Del. C. § 10004(f). “Such minutes shall include a record of those members present and a record, by individual members

. . . of each vote taken and action agreed upon.” Id. FOIA exempts from disclosure the minutes of executive session “so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.” Id.

Legal Analysis

Your complaint requires us to determine whether public bodies like the Council must maintain minutes of executive session separate and distinct from the minutes of the public portions of a meeting of the public body.

Section 10004(f) distinguishes between minutes of public meetings and minutes of executive session for purposes of the public record requirements of FOIA. The minutes of public meetings are public records, while the minutes of executive session are not public records “so long as public disclosure would defeat the lawful purpose for the executive session.”

Logically, FOIA requires a public body to maintain separate minutes for executive session, otherwise the exemption from the public records requirements of FOIA would be superfluous. “In determining legislative intent in this case, we find it important to give effect to the whole statute and leave no part superfluous.” Keeler v. Harford Mutual Insurance Co., Del. Supr., 672 A.2d 1012, 1016 (1996) (quoting 2A Sutherland Statutory Construction § 46.06 (1995)).

Since the Council will be preparing minutes of executive session for the first time, we offer some guidance as to the required contents. The statute does not require a public body “to summarize the subjects discussed with any degree of specificity in the minutes of executive session.” Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., C.A. No. 13798 (Dec. 5, 1995). But the minutes of executive session must be sufficient to allow our Office to make an in camera determination that the subject(s) discussed during executive are authorized by FOIA. Otherwise, as part of our investigative responsibilities, we may need to hear from the Council members who attended the executive session. See Red Clay, supra (since there were only “bare-bone” minutes of the executive session, Common Cause had to depose each of the school board members).

What may satisfy the agenda requirements of FOIA (“land acquisition” is sufficient without identifying the land in question), may not satisfy the requirements for executive session minutes

For example, “it is not necessary to identify the personnel in convening an executive session to constitute personnel matters.” Att’y Gen. Op. 97-IB23 (Dec. 23, 1997). But it may be necessary to identify the individual involved and the nature of the personnel matter in the minutes of executive session to be sure what the public body actually discussed.

Conclusion

For the foregoing reasons, we find that the Council violated the open meeting requirements of FOIA by failing to maintain minutes of an executive session held on July 17, 2001.

We do not think that any remediation is necessary. It would difficult to re-construct the details of a brief meeting six months ago. There is nothing in the record to suggest that the Council did not discuss land acquisition, which FOIA authorizes as a subject for executive session. However, we caution the Council that in the future it must strictly comply with the open meeting requirements of FOIA and maintain separate minutes for each executive sessions.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Keith R. Brady, Esquire

Assistant State Solicitor

cc: Dennis L. Schrader, Esquire

Mr. Phillip G. Johnson, Opinion Coordinator