Can a county keep the minutes of an executive session about buying land confidential while negotiations are still ongoing?

Official title

02-IB27: FOIA Complaint Against Sussex County Council

Plain-English summary

A resident asked for the minutes of a September 10, 2002 Sussex County Council executive session on "Land Acquisition" and was refused. The AG reviewed the minutes privately (in camera) and confirmed the council had discussed the potential purchase of properties by the county, a subject FOIA specifically allows to be discussed behind closed doors as a preliminary decision on site acquisition, and confirmed the council hadn't voted or reached any consensus on a specific parcel. The county explained it withheld the minutes because negotiations were still ongoing, and the AG agreed that releasing them now would tip the county's hand and defeat the purpose of the closed session. The AG noted, though, that once the county actually completes a purchase, the minutes of that earlier executive session could lose their protection and become subject to disclosure, and the resident could ask again at that point.

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: Can a county council discuss buying a piece of property behind closed doors?
A: Yes, according to this opinion. The AG found FOIA specifically authorizes executive session for preliminary decisions on site acquisitions for publicly funded capital improvements, and confirmed through an in camera review that the council's discussion fit within that authorized subject.

Q: If land-purchase negotiations are still ongoing, does the government have to release the minutes of its private strategy discussions?
A: No, according to this opinion. The AG found the county could continue withholding those minutes because releasing them while negotiations were unresolved would defeat the purpose of the executive session.

Q: Do executive-session minutes about a land purchase stay secret forever?
A: No, based on this opinion. The AG noted that once the county completes the purchase, the minutes may no longer serve any confidential negotiating purpose and could become subject to disclosure, at which point the requester could renew the request.

Background and statutory framework

The complaint concerned whether Sussex County Council properly used executive session on September 10, 2002 to discuss "Land Acquisition," and whether it could withhold the session's minutes while the underlying property negotiations continued. The AG's in camera review confirmed the discussion involved a preliminary decision on site acquisition authorized under 29 Del. C. § 10004(b)(2), without any vote or consensus on a specific parcel, drawing on Government Land Bank v. General Services Administration for the principle that FOIA-type protections cover the government's ordinary commercial role when it enters the real estate market. Applying 29 Del. C. § 10004(f) and the minutes exemption in 29 Del. C. § 10002(d)(10), and following its own prior opinion, Att'y Gen. Op. 01-IB03, involving labor-negotiation minutes, the AG found the minutes could remain confidential while negotiations were ongoing, but flagged that the protection could lapse once the county completed the purchase.

Citations and references

Statutes:

• 29 Del. C. § 10004(b)(2), executive-session authorization for preliminary site-acquisition decisions
• 29 Del. C. § 10002(d)(10), exemption of properly-held executive-session records from the definition of "public record"
• 29 Del. C. § 10004(f), minutes may be withheld "so long as" disclosure would defeat the executive session's lawful purpose

Cases:

• Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982), FOIA protects the government acting as an ordinary commercial buyer or seller of real property
• Att'y Gen. Op. 01-IB03 (Feb. 16, 2001), a school district could withhold executive-session minutes on labor negotiations while negotiations continued

Source

• Landing page: https://attorneygeneral.delaware.gov/2002/11/04/02-ib27-foia-complaint-against-sussex-county-council/
• Original PDF: not linked from landing page

Original opinion text

November 4, 2002

Civil Division-Kent County

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 October 10, 2002, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), alleging that the Sussex County Council ("the Council") violated FOIA by meeting in executive session on September 10, 2002 and then not providing you with a copy of the minutes of that executive session.

By letter dated October 11, 2002, we asked for the Council's response, which we received on October 23, 2002. The agenda for the September 10, 2002 Council meeting (which was posted seven days in advance, in accordance with FOIA) listed "Executive Session – Land Acquisition." The County provided us with a copy of the minutes of that executive session for our in camera review.

Relevant Statutes

FOIA authorizes a public body to go into executive session to discuss "[p]reliminary decisions on site acquisitions for any publicly funded capital improvements." 29 Del. C.

§ 1000(4)(b)(2).

FOIA exempts from disclosure "any records of discussions held in executive session pursuant to subsections (b) and (c) of Section 10004 of [FOIA]." 29 Del. C. § 10002(d)(10). Section 10004(f) of FOIA requires a public body to maintain minutes of executive sessions, which "may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but not longer."

Legal Analysis

Our in camera review of the minutes of the September 10, 2002 executive session confirms

that the Council discussed the potential purchase of properties by the County, which is an authorized subject for discussion in executive session under FOIA. See Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982) (FOIA "protects the government when it enters the marketplace" to purchase real property "as an ordinary commercial buyer or seller"). Our review also confirms that the Council did not vote or reach a consensus decision on the purchase of any particular parcel of property in violation of FOIA.

In denying you access to the minutes of that executive session, the Council explained that "the matters addressed in the Executive Session are not concluded and negotiations are ongoing." We agree that disclosure of the minutes before the purchase of property "would defeat the lawful purpose for the executive session." 29 Del. C. § 10004(f). See Att'y Gen. Op. 01-IB03 (Feb. 16, 2001) (school district could withhold minutes of executive session concerning labor negotiations "while negotiations are continuing and during periods of time between negotiations").

At some point after the County has purchased property, the minutes of prior executive sessions regarding the purchase of the property may become subject to FOIA because disclosure would no longer "defeat the lawful purpose for the executive session." 29 Del. C § 10004(f). At that time, you could renew your request.

Conclusion

For the foregoing reasons, we determine that the Council did not violate FOIA when it met in executive session on September 10, 2002 for the authorized purpose of discussing preliminary site acquisition, and that the Council did not violate the open records requirements of FOIA by withholding the minutes of that executive session at this time.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED

Malcolm S. Cobin, Esquire

State Solicitor

cc: The Honorable M. Jane Brady

Dennis L. Schrader, Esquire

Phillip G. Johnson, Opinion Coordinator