Can a Delaware public body vote in public to hire one of two final job candidates without naming them at the time of the vote?

Official title

05-IB12: RE: F.O.I.A. Complaint Against New Castle County Council

Plain-English summary

A newspaper reporter complained that New Castle County Council's Personnel Committee violated FOIA when it interviewed two finalists for the position of counsel to the Council in executive session, then returned to public session and voted for "Candidate A" or "Candidate B" without revealing who they actually were. The committee had lawfully closed the interviews under FOIA's exemption for discussing a citizen's job qualifications, and the complainant didn't dispute that part. The issue was the anonymized public vote itself, and the fact that the county held off announcing the winning candidate's name for a short time afterward to let her negotiate salary without her current employer finding out. The AG found no violation. FOIA's job applicant privacy exemption exists precisely so people can compete for public jobs without every employer and coworker learning they applied, and that privacy interest survives even into the public vote portion, since the whole point of a private interview process would be undermined if a name had to be disclosed the moment a public vote happened. Because the minutes recorded exactly how each committee member voted, and the winning candidate's name came out once she accepted the position, the AG found the public wasn't deprived of any meaningful ability to hold the committee accountable.

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: Does a Delaware public body have to name job candidates when it votes in public on which one to hire?
A: No, according to this opinion, when the position was properly discussed in executive session under FOIA's job-qualifications exemption; the candidates' privacy interest continues through the public vote until an offer is actually made and accepted.

Q: Do the minutes still have to show how each council or committee member voted, even if the candidates are only referred to by code names?
A: Yes, based on this opinion. FOIA requires minutes to record each member's individual vote and the nature of the action taken, which this opinion found is satisfied even without naming the candidates at that stage.

Q: Is there a point where a job finalist loses their privacy right and the public gets to know who's being considered?
A: Yes, according to this opinion, distinguishing an earlier case where finalists for a school superintendent job had already lost their expectation of privacy through public site visits at their current workplaces; without similarly public steps, finalists here kept their privacy through the vote.

Background and statutory framework

The complaint concerned a March 14, 2005 New Castle County Council Personnel Committee meeting where two anonymized finalists for counsel to the Council were interviewed in executive session and voted on by code name in public session. Applying the open-meeting requirement of 29 Del. C. §10004(a), the job-qualifications executive session exemption at §10004(b)(1), the minutes requirement at §10004(f), and FOIA's declaration of policy at Sec. 10001, and drawing on its own prior opinions recognizing job applicants' privacy interest (Att'y Gen. Op. 99-IB03, quoting Core v. United States) and distinguishing a case where finalists had already lost that privacy interest through public site visits (Att'y Gen. Op. 02-IB17), the AG found the committee struck a reasonable balance between applicant privacy and the public's right to know.

Citations and references

Statutes:

• 29 Del. C. §10004(a), every meeting of a public body must be open to the public except authorized executive sessions
• 29 Del. C. §10004(b)(1), executive session authorized to discuss an individual citizen's qualifications to hold a job
• 29 Del. C. §10004(f), minutes must record members present and each member's vote and the action agreed upon
• 29 Del. C. Sec. 10001, FOIA's declaration of policy favoring public monitoring of officials' decisions

Cases:

• Att'y Gen. Op. 99-IB03 (Apr. 28, 1999), quoting Core v. United States, 730 F.2d 946, 949 (4th Cir. 1984), job applicants have a privacy right in their application until hired
• Att'y Gen. Op. 02-IB17 (Aug. 6, 2002), finalists who underwent public site visits at their current workplaces had already lost their reasonable expectation of privacy

Source

• Landing page: https://attorneygeneral.delaware.gov/2005/05/09/05-ib12-re-f-o-i-a-complaint-against-new-castle-county-council/
• Original PDF: not linked from landing page

Original opinion text

May 9, 2005

Civil Division-Kent County (739-7641)

05-IB12

Ms. Charlotte Hale

Staff Reporter

The News Journal

P.O. Box 15505

Wilmington, DE 19850

Re: Freedom of Information Act Complaint

Against New Castle County Council

Dear Ms. Hale:

Our Office received your Freedom of Information Act (“FOIA”) complaint on March 21,

2005 alleging that the Personnel Committee of the New Castle County Council (“the Personnel

Committee”) violated the open meeting requirements of FOIA. *1 The Personnel Committee met in

executive session on March 14, 2005 to discuss the qualifications of the two finalists for the position

of counsel to the County Council. You acknowledge that the Personnel Committee met in executive

session for a purpose authorized by law. See 29 Del. C. § 10004(b)(1) (authorizing executive

session to discuss “an individual citizen’s qualifications to hold a job”). You allege that the

Personnel Committee violated the open meeting requirements of FOIA when it returned to public

session and “cast votes for ‘Candidate A’ or ‘Candidate B’ without identifying these two

individuals.”

You acknowledge that the next day “County Council President Paul Clark revealed the name

of only one of the two candidates in a voluntary phone call to The News Journal” but he “would not

confirm the identity of the second applicant, known as Candidate ‘B.’” You contend that the use of

code names during the voting process “effectively denies the public the right to ‘monitor the

decisions that are made by . . . [public] officials in formulating and executing public policy,’ as

required under 29 Del. C. Sec. 10001.”

By letter dated March 23, 2005, we asked the Council to respond to your complaint within

ten days. The Council asked for a brief extension of time, which we granted. We received the

Council’s response on April 12, 2005. We asked the Council for copies of the minutes of the

meeting of the March 14, 2005 Personnel Committee meeting (public and executive sessions), which

we received on April 19, 2005. *2 We asked the Council for additional information which we

received on April 21, 2005.

The Council provided us with a copy of the agenda for the March 14, 2005, which stated that

the Personnel Committee “will go into Executive Session to discuss an individual’s qualifications

to hold a job (interviews) pursuant to Del. Code Title 29 Sec . 10004(b)(1).” According to the

Council, after the executive session, “the Chairman of the Committee announced in public session

that a vote would be taken on extending a tentative offer to one of the two candidates, who were

identified as Candidate A and Candidate B. . . . [O]nce a vote was proposed to extend such an offer,

including a proposed salary, to one candidate, the candidate’s name could be disclosed and a hiring

offer extended. A vote was taken in public session to tender a tentative officer to Candidate A.”

According to the Council, the position of counsel to the Council was posted on the Council’s

website and other places; applications were received from a number of attorneys. The Council’s

deputy clerk screened the applications for minimum job qualifications. The Council met in

executive session to interview the remaining candidates, narrowing the field down to two finalists.

The deputy clerk then called the references whom the two finalists authorized to be contacted in

their applications. *3

The minutes of the Personnel Committee meeting confirm that after calling the March 14,

2005 meeting to order, a motion was made and approved to go into executive session to conduct

interviews for the counsel to Council position. The minutes of the executive session show that

members of the Personnel Committee questioned the two finalists on their legal and employment

background and experience. After interviewing the two candidates, the Committee discussed their

comparative qualifications.

After the Committee came out of executive session, the members voted in public for

Candidate “A” or Candidate “B.” The minutes of the public session record the votes of each

individual member of the Committee by name and the candidate he or she voted for. By a vote of

7-6, the Committee approved the hiring of candidate “A.”

According to the Council, it did not release the name of Candidate “A” immediately after

the vote to give some time for Candidate “A” to accept the position at an agreed-upon salary. The

Council explains that it continued to have privacy concerns: if, for some reason, Candidate “A” did

not accept the position on the terms offered, then she would not want it disclosed to her current

employer that she had been looking for other employment. The Personnel Committee next met on

March 21, 2005. The agenda for that meeting disclosed that the new counsel to the Council was

Wendy, R. Danner, Esquire.

Relevant Statutes

FOIA requires that “[e]very meeting of all public bodies shall be open to the public except

those closed pursuant to subsections (b), (c), (d) and (g) of this section” 29 Del. C. §10004(a).

Subsection (b) authorizes a public body to meet “in an executive session closed to the

public” to discuss nine different topics, including: “Discussion of an individual citizen’s

qualifications to hold a job or pursue training unless the citizen requests that such a meeting be

open.” 29 Del. C. §10004(b)(1).

FOIA requires a public body to “maintain minutes, including executive sessions, conducted

pursuant to this section . . . Such minutes shall include a record of those members present and a

record, by individual members . . . of each vote taken and action agreed upon.” 29 Del. C. §

10004(f).

Legal Authority

In Att’y Gen. Op. 99-IB03 (Apr. 28, 1999), we determined that the town lawfully met in

executive session to discuss the hiring of a new town manager. The complaining citizen contended

that the town did not adequately disclose in the agenda the reason it would meet in executive session

(the agenda listed for executive session “Personnel Matter”). We determined that FOIA did not

require “the Town to disclose in the agenda the name or names of applicants for a job. For sound

policy reasons, job applicants have a right of privacy to information disclosed during the application

process, at least until they are hired.” “‘[D]isclosure may embarrass or harm an applicant who failed

to get a job. Their present employers, co-workers, and prospective employers, should they seek new

work, may learn that other people were deemed better qualified for a competitive position.’” Att’y

Gen. Op . 99-IB03 (quoting Core v. United States , 730 F.2d 946, 949 (4th Cir. 1984)).

In Att’y Gen. Op. 02-IB17 (Aug. 6, 2002), we determined that the school district violated the

open meeting requirements of FOIA several times during the selection process for a new school

superintendent. The school district did not violate FOIA by meeting in private for “interviews and

discussion of the applicants’ job qualifications, which are appropriate subjects for executive

session.” We determined, however, that after the school district made site visits to the schools where

the final three applicants worked, “the three applicants did not have a reasonable expectation of

privacy to justify an executive session under Section 10004(b)(1). Their current employers had to

be aware of their application through reference checks and the site visits.”

Att’y Gen. Op . 02-IB17 (Aug. 6, 2002) is distinguishable. Here, the two final applicants had

a reasonable expectation of privacy until such time as the Council voted to hire one of them and

extend an offer of public employment. Candidate A did not list anybody from her current employer

as an authorized reference to contact. Candidate B listed her immediate supervisor, but we do not

believe that by doing so she gave up all expectation of privacy. There is nothing in the record that

is analogous to the highly public site visits that occurred in Att’y Gen. Op. 02-IB17 for the three

finalists for the position of school superintendent. *4

Your complaint also raises an issue whether the Council complied with the requirements

under FOIA for recording votes on matters of public business. FOIA requires a public body to

prepare and maintain minutes of every meeting. “Such minutes shall include a record of those

members present and a record, by individual members . . . of each vote taken and action agreed

upon.” 29 Del. C. § 10004(f). The term “action agreed upon” is fairly general, and we interpret it

only to require that the minutes indicate the nature of the public business voted on by the public

body.

For privacy reasons, FOIA does not require a public body to identify by name in the agenda

the candidates for a job whose qualifications can lawfully be discussed in executive session. By the

same rationale, we determine that FOIA does not require, in the case of a new job applicant, that the

public body disclose the name of the individual candidates at the time of the vote in public session.

When a job offer is extended and accepted, the name of the job applicant necessarily will become

public, and the public will know, from the minutes, which members of the public body voted to hire

that applicant.

Conclusion

For the foregoing reasons, we determine that the Personnel Committee did not violate the

open meeting requirements of FOIA when it voted, in public session, which of two final candidates

to hire as counsel to the Council without disclosing, at the time of the vote, the names of the two

candidates. FOIA only required the votes of the individual members of the Committee to be counted

and memorialized in the minutes as to how each member voted. After Candidate “A” accepted the

position and her name disclosed, it was clear to the public which members of the Committee had

voted for Candidate “A” and which members had preferred another attorney. Under these

circumstances, we do not believe that the public was deprived of a meaningful opportunity to

monitor their government in action. The Committee struck a reasonable balance between the

privacy rights of the applicants, and the public’s right-to-know consistent with previous opinions

of our Office.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

APPROVED:

Malcolm S. Cobin

State Solicitor

cc:

The Honorable M. Jane Brady

Attorney General

Lawrence W. Lewis, Esquire

Deputy Attorney General

Leonard E. Collins, Jr., Esquire

Assistant Counsel to the Council

Phillip G. Johnson

Opinion Coordinator

FOOTNOTES

*1 In your letter dated March 18, 2005 (received by our Office on March 21, 2005),

you asked us to expedite our investigation and written determination because “the same

committee is scheduled to vote on a similar matter as soon as March 21. A ruling on the March

14 vote could help clarify the procedures the committee should follow in subsequent votes.” As

State Solicitor Malcolm S. Cobin explained by telephone to one of your editors, it was not

possible for us to investigate and make a written determination in such a short time frame.

*2 The Council informed us that the minutes of the executive session held on March

14, 2005 had been typed but not yet approved, and provided them to us for our in camera review

with that caveat.

*3 Candidate A listed an attorney with a former employer as a reference, but did not

list anyone at her current place of employment. Candidate B listed a former co-worker and one

immediate supervisor with her current employer.

*4 We note that in Att’y Gen. Op. 02-IB17 the school district allowed the public to

meet and question the three finalists at a public meeting (code-named Candidate “A,” “B,” and

“C”). All three finalists, however, were from out of state and not likely to be known by name to

the local audience. In contrast, the two finalists for the position of counsel to the Council were

both well-known attorneys in New Castle County.