Can a Delaware public body hold an executive session before its publicly noticed meeting starts?

Plain-English summary

The Diamond State Port Corporation (DSPC) Board scheduled a virtual public meeting for January 21, 2022 at 10:00 a.m. The agenda listed routine items including approval of the October 6, 2021 meeting minutes. It did not mention an executive session.

On the day of the meeting, the Board convened at 9:00 a.m., an hour before the noticed public start time, to hold an executive session. The public session began about 10:27 a.m. During the public session, the Board referenced the earlier executive session, which had discussed "proprietary information." AP reporter Randall Chase emailed DSPC staff who confirmed the early executive session. He then filed a petition.

The DSPC's Executive Director attested that the executive session was held under § 10004(b)(6) (to discuss documents containing trade secrets or confidential commercial/financial information exempt under § 10002(o)(2)), no vote was taken in the executive session, and minutes were recorded. The DSPC argued that repeating the session would not be appropriate because the substantive issues were properly closed to the public.

The AG found two FOIA violations:

1. No public notice of the executive session. § 10002(a) and § 10004(c) require the agenda to include notice of intended executive session, including its purpose. The DSPC's agenda did not.

2. No vote to enter executive session in a meeting open to the public. § 10004(c) requires "[t]he vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public." Voting at 9:00 a.m. when the public was told the meeting started at 10:00 was not open to the public, even if technically a vote happened.

The AG also rejected the petition's third claim (that the October 6, 2021 minutes were not approved), accepting the Executive Director's sworn statement that they were approved during the public session.

The remedy: repeat the executive session in compliance with FOIA. Cited Op. 17-IB27 and Op. 02-IB33 for the principle that "stand-alone" executive sessions are not permitted under FOIA.

What this means for you

If you serve on a Delaware quasi-public board, port authority, or commission

Three rules to bake into your meeting practice:

• Notice the executive session in the agenda. Identify the purpose (which subsection of § 10004(b) authorizes it). "Discuss confidential documents" is a permitted purpose under § 10004(b)(6); "discuss personnel" is § 10004(b)(9); etc.
• Hold the vote in public. Members must convene in the noticed public meeting, then vote on whether to go into executive session. The vote and the result go into the minutes.
• Never start with the executive session. A "stand-alone" executive session before the public meeting is the textbook violation. Even if no votes happen in executive, the entry-vote requirement is procedural and substantive.

If you accidentally violate, do what DSPC was told: repeat the session in compliance.

If you are a Delaware journalist or researcher tracking a public body

Two diagnostic flags for executive-session violations:

• The agenda makes no mention of executive session, but you hear references to one in the public session. Worth a petition. The Board has to be able to point to the agenda item that noticed it.
• The meeting starts late or the Board references a prior conversation. Ask staff: was an executive session held? When? Was the vote-to-enter taken in public? If the answers are evasive, document and petition.

If you are a public body's general counsel

Train on § 10004(c) explicitly. The trap is common: members assume that since substance can be discussed in private, the procedural shell can be private too. It can't. The vote to enter executive session is a public act.

When in doubt, schedule the executive session as a properly noticed agenda item at the start of the public meeting, with a brief public-session opening, then the vote, then move into executive.

Common questions

Q: What is a "stand-alone" executive session?
A: An executive session held without a corresponding open public meeting. Op. 02-IB33 first ruled that FOIA does not permit them. Op. 17-IB27 reaffirmed it. The procedural requirement (vote to enter in public) cannot be satisfied if there is no public session.

Q: Can the executive session be before or after the public session?
A: Either, as long as the public session is properly noticed first, the vote to enter executive session is taken in the public session, and minutes record both. Most boards do executive first (after a brief opening), then return to substantive public business; some do executive at the end. Both are fine.

Q: What happens if a Board votes in executive session?
A: That is a separate violation. Substantive votes must occur in public session. Some preliminary deliberations and consensus-building can happen in executive, but final action must be public.

Q: Why can a Board discuss "trade secrets" in executive session?
A: § 10004(b)(6) explicitly authorizes executive session "for discussion of the contents of a document, excluded from the definition of 'public record' in § 10002(o) of this title." § 10002(o)(2) excludes trade secrets and confidential commercial/financial information. So the substantive purpose was permissible; the procedural notice and vote were not.

Q: What's the remedy for a stand-alone executive session?
A: Recommended: repeat the session in compliance. The original executive session is essentially un-done; the substantive deliberations have to happen again under proper FOIA procedure. Substantive decisions reached only in the original session are vulnerable to invalidation if they translate to public action.

Q: Was the AP getting access to the minutes a remedy?
A: No. The minutes of a properly held executive session are not automatically public. The remedy in this opinion is procedural: redo the session correctly, not produce its records.

Background and statutory framework

Section 10004(b)(9) categories. § 10004(b) lists permitted purposes for executive session: personnel, discussion of confidential documents (b)(6), litigation strategy, security planning, etc. The specific subsection should be cited in the public agenda notice.

Section 10004(c). This is the procedural rule the DSPC violated. Two independent requirements: (1) the executive session must be authorized by an affirmative vote of a majority of members present; (2) that vote must be taken at a meeting "open to the public," with the result publicly disclosed and recorded in the minutes.

Stand-alone prohibition. Op. 02-IB33 and Op. 17-IB27 confirm: a Board cannot hold an executive session as a freestanding gathering. It must be embedded in a properly noticed public meeting. The vote-to-enter requirement makes the embedded structure necessary.

Diamond State Port Corporation. A quasi-public corporation operating the Port of Wilmington. Subject to Delaware FOIA as a public body.

Citations and references

Statutes:
- 29 Del. C. § 10004(b)(6) (executive session for confidential documents)
- 29 Del. C. § 10004(c) (vote to enter must be in public)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB27 (July 18, 2017) (stand-alone executive session prohibited)
- Del. Op. Att'y Gen. 02-IB33 (Dec. 23, 2002) (foundational stand-alone ruling)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/02/18/22-ib03-02-18-2022-foia-opinion-letter-to-randall-chase-re-foia-complaint-concerning-the-diamond-state-port-corporation/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/02/Attorney-General-Opinion-No.-22-IB03.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB03
February 18, 2022

VIA EMAIL
Randall Chase
[email protected]

RE:

FOIA Petition Regarding the Diamond State Port Corporation

Dear Mr. Chase:
We write in response to your correspondence alleging that the Board of Directors of the
Diamond State Port Corporation ("DSPC") violated Delaware's Freedom of Information Act, 29
Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination
pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to
occur. As explained below, we determine that the DSPC violated FOIA by failing to provide
proper public notice of its executive session held on January 21, 2022 and to take the requisite vote
of its members in a meeting open to the public before entering the executive session. To remedy
these violations, we recommend that the Board repeat this executive session in compliance with
FOIA.

BACKGROUND
The Board scheduled a virtual meeting for January 21, 2022. The notice and agenda,
entitled "Public Session Board of Directors Meeting," indicated the meeting would begin at 10:00
am. In addition to other topics, the agenda included consideration of the Board's October 6, 2021
Board meeting minutes and did not mention an executive session. On the day of the meeting, the
Board convened an hour earlier than the noticed time to hold an executive session prior to the
public session of the meeting. After the executive session ended, the public session began at
approximately 10:27 am. At this public session, you allege that the Board referenced a prior

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executive session to discuss "proprietary information." 1 Following the conclusion of the meeting,
you emailed the DSPC staff, who confirmed that an executive session did take place earlier that
day. You filed this Petition, alleging that the Board did not comply with the open meeting
requirements, as it failed to give public notice of this executive session and its purpose and failed
to take a vote in public session to hold this executive session. In addition, you allege that contrary
to the posted agenda, the Board's October 6, 2021 meeting minutes were not considered at the
public meeting.
The DSPC's counsel provided a response on January 31, 2022 ("Response"), attaching the
affidavit of its Executive Director. The DSPC acknowledges that the agenda improperly noticed
the start time of the meeting and failed to provide notice of the executive session, including the
purpose of this session. Notwithstanding the early start, the DSPC maintains it did take a vote
before entering executive session, but the DSPC admits that its actions resulted in "the practical
effect of precluding the public's attendance at the opening of the public meeting and the vote into
executive session." 2 The DSPC asserts that its executive session was held for a proper purpose
under 29 Del. C. § 10004(b)(6): to discuss the contents of a document excluded from disclosure
pursuant to 29 Del. C. § 10002(o)(2) which exempts "trade secrets and commercial or financial
information obtained from a person which is of a privileged and confidential nature." 3 The
DSPC's Executive Director attested that the discussions in executive session were limited to
discussing "matters relating to the contents of documents that are financial or commercial
information obtained from a person which is of a privileged or confidential nature," that no vote
occurred during the executive session, and that minutes from the executive session were recorded. 4
As no vote took place during the executive session, the discussion was solely limited to matters
properly considered outside of public view, and minutes were recorded, the DSPC argues repeating
this executive session would not be appropriate. Finally, the DSPC provided its Executive
Director's sworn testimony that the October 6, 2021 minutes were approved at the January 21,
2022 meeting during the public session.

DISCUSSION
The Petition alleges that the DSPC committed three violations of FOIA: 1) failing to
approve the October 6, 2021 meeting minutes as indicated in the agenda; 2) failing to give proper
public notice of its January 21, 2022 executive session, including its purpose for convening this
session; and 3) failing to take a vote to enter this executive session in public session. The burden
of proof is on the public body regarding any failure to comply with the FOIA statute. 5 A sworn
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Petition.

2

Response, p. 5.

3

Id., p. 3-4.

4

Id., Affidavit of Executive Director Eugene Bailey.

5

29 Del. C. § 10005(c).
2

affidavit may be required to meet that burden. 6 As a preliminary matter, the DSPC's sworn
statement that its October 6, 2021 meeting minutes were approved at the public meeting satisfies
DSPC's burden of proof to overcome the allegation that DSPC failed to address this item. 7 As
discussed below, we find that the DSPC failed to meet its burden to demonstrate that it complied
with FOIA with respect to the two remaining claims.
FOIA mandates that a public body provide public notice of its intent to hold an executive
session in its agenda, including the purpose for the executive session. 8 To enter an executive
session, a majority of the present members of the public body must vote in a meeting open to the
public in favor of entering executive session. 9 In this case, the Board admits it failed to provide
any public notice of its executive session on its January 21, 2022 meeting agenda. In addition,
although the DSPC's counsel asserts that the Board took a vote before its executive session about
an hour before the posted public meeting time, this vote does not satisfy FOIA's requirement that
the Board vote to enter executive session in a meeting "open to the public," as the Board provided
no public notice to allow the public the opportunity to attend this session. Thus, the Board also
failed to take the required vote in a meeting "open to the public" before entering executive
session. 10 Accordingly, we determine that the DSPC violated FOIA by failing to provide proper
public notice of its executive session and failing to vote to enter this executive session in a meeting
open to the public and recommend that the Board repeat this executive session in compliance with
FOIA.

6

Judicial Watch, Inc. v. Univ. of Del., 2021 WL 5816692, at *12 (Del. Dec. 6, 2021).

7

Response, Affidavit of Executive Director Eugene Bailey.

8

29 Del. C. §§ 10002(a), 10004(c).

9

29 Del. C. § 10004(c) ("A public body may hold an executive session closed to the public
upon affirmative vote of a majority of members present at a meeting of the public body. The vote
on the question of holding an executive session shall take place at a meeting of the public body
which shall be open to the public, and the results of the vote shall be made public and shall be
recorded in the minutes.").
10

Id.; see also Del. Op. Att'y Gen. 17-IB27, 2017 WL 3426267, at 3 (July 18, 2017)
("Notwithstanding the foregoing, the record demonstrates that the Council appears to have treated
the meeting as a stand-alone executive session, which FOIA does not permit."); Del. Op. Att'y
Gen. 02-IB33, 2002 WL 34158592, at 3 (Dec. 23, 2002) ("FOIA does not permit a 'stand alone'
executive session.").
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CONCLUSION
For the reasons set forth above, we conclude that the DSPC violated FOIA by failing to
provide proper public notice of its executive session held on January 21, 2022 and to take the
requisite vote of its members in a meeting open to the public before entering the executive session.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Aaron R. Goldstein

Aaron R. Goldstein
State Solicitor

cc:

Katherine Betterly, Legal Counsel to Diamond State Port Corporation

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