Can a Delaware city keep executive session minutes secret when they cover a city solicitor's pay instead of a city employee's?

Official title

05-IB02: RE: Freedom of Information Complaint Against City of Newark

Plain-English summary

A police union president asked the City of Newark for the minutes of an August 9, 2004 executive session where the city council discussed pay for the City Secretary and separately for the City Solicitor and Deputy Solicitor, then voted publicly to raise all three. When the city refused to release even redacted minutes, the union appealed to the AG. The AG split the outcome. For the City Secretary, a salaried city employee, discussing her performance and pay in executive session was proper under FOIA's personnel exception, and because the minutes discussed nothing but her performance and compensation, no part of that portion could be meaningfully redacted, so it stayed confidential. For the City Solicitor and Deputy Solicitor, the AG found they are independent contractors providing legal services, not city employees, so the personnel exception never applied to them in the first place. The city was wrong to discuss their rates behind closed doors, and had to turn over that part of the minutes.

Currency note

This opinion was issued in 2005. 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 Delaware public body discuss a contractor's pay in a closed executive session the same way it discusses an employee's pay?
A: No, according to this opinion. FOIA's personnel exception for executive sessions applies only to actual employees, not to independent contractors like an outside solicitor, so their compensation discussions must happen in open session.

Q: If executive session minutes cover both a protected personnel topic and an improper topic, does the whole thing stay secret or get released?
A: Based on this opinion, only the properly protected part stays confidential; the city had to release the portion of the minutes covering the improperly closed discussion about the contractors' rates.

Q: Does a public employee's evaluation and salary discussion in executive session ever have to be released?
A: Generally no, according to this opinion, when the minutes relate entirely to the employee's performance, abilities, and compensation, since releasing them would invade personal privacy and defeat the purpose of the executive session.

Background and statutory framework

The complaint concerned an August 9, 2004 City of Newark council executive session covering pay decisions for the City Secretary and for the City Solicitor and Deputy Solicitor. Applying the open-meeting and public-records requirements of 29 Del.C. §10002(a) and §10004(a), the personnel-matters executive session exception at §10004(b)(9), the related "public record" exclusion at §10002(d)(10) and §10004(f), the personal-privacy exemption at §10002(g)(1), and its prior opinion limiting the personnel exception to actual employees (Att'y Gen. Op. 02-IB17), the AG upheld confidentiality for the City Secretary's portion of the minutes but ordered disclosure of the portion concerning the independent-contractor Solicitor and Deputy Solicitor.

Citations and references

Statutes:

• 29 Del.C. §10002(a), public records open to inspection and copying by any citizen
• 29 Del.C. §10004(a), meetings of public bodies must be open except for authorized executive sessions
• 29 Del.C. §10004(b)(9), executive session permitted to discuss personnel matters involving the names, competency, and abilities of individual employees
• 29 Del.C. §10002(d)(10), records of executive session discussions under §10004(b) and (c) are excluded from the "public record" definition
• 29 Del.C. §10004(f), the executive session exemption lasts only as long as disclosure would defeat the lawful purpose of the session
• 29 Del.C. §10002(g)(1), personnel records whose disclosure would invade personal privacy are not public records

Cases:

• Att'y Gen. Op. 02-IB17 (August 6, 2002), the personnel exception to open-meeting requirements applies only to public employees, not independent contractors

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/01/12/05-ib02-re-freedom-of-information-complaint-against-city-of-newark/
• Original PDF: not linked from landing page

Original opinion text

January 12, 2005

Civil Division – New Castle County

05-IB02

Mr. John A. DeGhetto

President

Newark Lodge #4

Fraternal Order of Police

P.O. Box 475

Newark, DE 19715

Re:   Freedom of Information Complaint

Against City of Newark

Dear Mr. DeGhetto:

On October 8, 2004, our office received your Freedom of Information Act

(“FOIA”) complaint alleging that the City of Newark (the “City”) violated FOIA by not

providing minutes of an executive session held on August 9, 2004. By letter dated

October 13, 2004, we asked the City to respond to your complaint. We received the

City’s response on October 29, 2004. We received a supplemental response from the

City on November 17, 2004, including a copy of the executive session minutes that we

reviewed in camera.

On August 9, 2004, at the close of its regularly scheduled meeting, the Mayor and

Council of the City went into executive session for the purpose of discussing personnel

related issues. Notice of the August 9, 2004 meeting, including notice of a “[r]equest for

Executive Session re Personnel” was timely and properly published. Specifically, the

executive session was called in order for Council to evaluate the performances of the City

Secretary and the City Solicitor to determine whether the City Secretary should be given

a raise and whether the City Solicitor and Deputy Solicitor should have their hourly rates

for legal services increased. After the discussion concerning the performance of these

individuals, Council ended the executive session and reconvened the public meeting. At

that time, with no further public discussion, Council voted unanimously to increase the

annual salary of the City Secretary and to increase the hourly rate paid to the City

Solicitor and the Deputy Solicitor.

On September 2, 2004 you wrote to the City Secretary requesting a copy of the

minutes of the executive session held on August 9, 2004. By letter dated September 20,

2004, the City Secretary denied your request based upon the recommendation of the City

Solicitor.

Relevant Statutes

FOIA requires that “[a]ll public records shall be open to inspection and copying

by a citizen of the State during regular business hours by the custodian of the records for

the appropriate public body.” 29 Del.C. §10002(a). FOIA further requires that “[e]very

meeting of all public bodies shall be open to the public except those closed” for executive

session for one of nine purposes authorized by statute. Id. §10004(a). One exception is

to discuss “[p]ersonnel matters in which the names, competency and abilities of

individual employees . . . are discussed, unless the employee . . . requests that such a

meeting be open.” Id. §10004(b)(9). Additionally, FOIA exempts from the definition of

“public record” any “record of discussions held in executive session pursuant to

subsection (b) and (c) of Section 10004 of this title.” 29 Del.C. §10002(d)(10). Section

10004(f), however, provides that this exemption applies only “so long as public

disclosure would defeat the lawful purpose for the executive session, but no longer.”

Legal Analysis

In your complaint you have acknowledged that personnel records, the disclosure

of which would constitute an invasion of personal privacy, are not deemed public records

under FOIA. See 29 Del.C. §10002(g)(1). Likewise, you do not dispute that a public

body may call for an executive session in order to discuss personnel matters pursuant to

29 Del.C. §10004(b)(9). Still, you seek the minutes of the executive session involving

discussions related to the City Secretary and the City Solicitor and Deputy Solicitor “after

information relating to specific job performance/qualifications of the employees in the

noted positions is redacted by the City.”

As the City noted in its response to the complaint “[t]he Solicitor and Deputy

Solicitor are not salaried Newark employees, but serve as contracted professionals.” The

City further acknowledges that “[d]uring the executive session in this case, the

competency, qualifications, strengths and weaknesses of the City Secretary and City

Solicitor were discussed.” It then argues that “[t]he fact that the Secretary is a salaried

public employee and that the Solicitor performs legal work for a public body does not

suggest that either individual has lost his or her right to privacy when candidly evaluated

by the public employer.” The City concludes that the minutes taken during the executive

session evaluations of the City Secretary and the City Solicitor are not public records

under FOIA and should not be disclosed because to do so would infringe on these

individuals’ personal privacy.

As the City has acknowledged, the City Solicitor and the Deputy Solicitor are not

public employees. Rather, they are independent contractors hired by the City to provide

professional legal services. This office has previously held that the “personnel”

exception to the open meeting provisions of FOIA does not apply to independent

contractors but only public employees. See Att’y Gen. Op. 02-IB17 (August 6, 2002).

Similarly, we find that since the City Solicitor and Deputy Solicitor are not employees of

the City, any records relating to their provision of legal services are not exempt from

disclosure under the “personnel file” exemption of FOIA. Therefore, the City erred when

it went into executive session to discuss its contractual arrangements with the City

Solicitor and Deputy Solicitor. For this reason, the portions of the minutes of Council’s

executive session pertaining to those discussions must be provided.

With respect to the discussions relating to the salary of the City Secretary, we find

that the City properly called an executive session pursuant to 29 Del.C. §10004(b)(9) and

that the minutes of the executive session relating to those discussions are not public

records pursuant to 29 Del.C. §10002(g)(1). While a public body must try to redact

exempt information from its records to make non-exempt information available to the

public, we have reviewed the minutes of the executive session in camera and find that the

discussions pertaining to the City Secretary are not subject to redaction since the minutes

relate to the City Secretary relating entirely to her performance, abilities and

compensation. As such, their release would constitute an invasion of her personal

privacy thereby defeating the lawful purpose for which the executive session was called.

See 29 Del.C. §10004(f)

Conclusion

For the foregoing reasons, we find that the City did not violate the executive

session or public records requirements of FOIA as they apply to the City Secretary. We

further find that with respect to the discussions relating to the City Solicitor, Deputy

Solicitor and Council improperly held an execution session for a purpose not authorized

by statute. Therefore, we instruct the City to redact from the minutes of the Council’s

executive session all discussions pertaining to the City Secretary and to provide you with

a copy of the redacted minutes.

Very truly yours,

Keith R. Brady

Assistant State Solicitor

APPROVED:

Malcolm S. Cobin

State Solicitor

Cc:

The Honorable M. Jane Brady

Phillip G. Johnson, Opinion Coordinator