Can a Delaware board vote in public on 'administrative action discussed in executive session' without identifying which employee, when there are only three employees in the agency?

Plain-English summary

Mike Lang petitioned the AG over a November 10, 2022 vote by the Delaware Interscholastic Athletic Association (DIAA) Board. After an executive session for a "DIAA Personnel Matter," the Board voted publicly "to take administrative action as discussed in executive session." Lang argued the vote should be invalidated for lack of specificity.

The AG's response is a careful balance. Two competing principles pulled in opposite directions:

• Public voting policy. Section 10004(c) requires "all voting on public business [to] take place at a public meeting and the results of the vote made public." The AG has read this to mean the public should be able to "discern how and when a matter is decided" (Op. 15-IB11).
• Employee privacy under § 10004(b)(9). The personnel exception protects employees from public airing of their "competence or ability." The AG's prior opinions emphasize that the exception "reflects the balance between the public interest in open discussion of governmental matters and the rights of employees to have their work performance considered in private."

The DIAA had three employees total. The Board Chair attested under oath that the matter involved one of those three employees and that the vague motion language was deliberate, intended to protect the employee's privacy. The AG found that, on these specific facts, the privacy interest outweighed the public-discernment interest. Citizens could see from the agenda and minutes that a personnel matter had been discussed and that action had been taken; the small employee pool just meant any more specificity would have de-identified the staff member.

The opinion's holding is narrow. It applies to small public bodies where naming the action would functionally name the employee. For larger public bodies, the same vague motion would likely fail, as Op. 24-IB08 (Rehoboth Beach city solicitor) and Op. 21-IB03 (school superintendent contract) make clear.

What this means for you

If you serve on a small Delaware public body or board

This opinion gives you a narrow safe harbor. Use it carefully:

1. Document the size of the affected pool. A sworn affidavit from the chair (here, three employees total) was the foundation of the AG's holding. If you face a similar challenge later, your record needs the same clarity.
2. Document the privacy reason. The AG accepted the Chair's attestation that vagueness was "to protect the employee's privacy." Good practice: enter that purpose on the meeting record contemporaneously.
3. Confirm the employee did not request public discussion. Section 10004(b)(9) lets the employee opt for public airing. If the employee does, the privacy concern goes away and you must be more specific.
4. Stay within the personnel scope. This protection only works when the action genuinely involves competence or ability of a public employee. It is not a wildcard for vague motions on other topics.

If you are a citizen reading this opinion

You can still hold a small public body accountable. The motion itself can be vague when employee privacy demands it, but:

• The agenda must still tell you that personnel action could be voted on. (See Op. 24-IB08.)
• The executive session must actually be about employee competence or ability. The Chair must be able to attest under oath if challenged.
• The Board must vote publicly. They cannot "consensus" through silent agreement during executive session.
• After the action, you can usually FOIA the eventual outcome (the employee leaving, a new posting, a position change), even if the meeting record is sparse.

If you advise public bodies as counsel

The line to teach your boards:

• Use full specificity in motions when there's no privacy concern (e.g., contractor engagements, policy decisions, real estate sales).
• Use strategic vagueness only when (a) the public body is small, (b) the matter is genuinely about employee competence, and (c) the employee has not requested public discussion.
• Always have a sworn factual basis ready if challenged. Don't rely on attorney representations alone after Judicial Watch v. Univ. of Del.

If you are a Delaware public employee facing a personnel action

Two practical points:

• You can request a public discussion under § 10004(b)(9). That waives the privacy protection, which may be what you want in some circumstances.
• If you are concerned about a public meeting outing the matter, raise the small-staff dynamic. The AG has acknowledged it as a legitimate factor.

Common questions

Q: Doesn't FOIA require all votes to be public?
A: Yes, all voting must occur at a public meeting (§ 10004(c)), and the result must be public. This opinion does not change that. It only addresses how specifically the public motion has to describe the underlying matter.

Q: Why does the small staff size matter?
A: With three employees, naming the action ("terminate," "discipline," "reassign") effectively identifies which of the three was affected. The personnel exception's privacy purpose would be defeated. With a 200-employee district, naming the action does not identify anyone, so vagueness loses its justification.

Q: How does this interact with Op. 24-IB08 (city solicitor) or Op. 21-IB03 (superintendent)?
A: Those opinions found violations because (a) the agenda did not put the public on notice and (b) the matter affected someone (city solicitor, superintendent) who was either an independent contractor or holding a position the public has a strong interest in tracking. Here, by contrast, the agenda did notice "personnel matter," the position was an ordinary staff role, and the staff was tiny.

Q: Can the small-pool exception apply to a large district that just happens to have one administrator in a particular office?
A: This is uncertain. The AG's reasoning rests on the practical inability to anonymize without making the motion empty. A sub-office of one in a large district might fit, but expect a fight. Document the privacy interest carefully.

Q: What if the employee wants the public to know?
A: Then the public-voting interest aligns with the employee's interest, and you should make the motion specific. Section 10004(b)(9) explicitly allows the employee to request a public meeting, which removes the privacy concern.

Q: Can I FOIA the executive session minutes?
A: Generally not. Executive-session minutes are usually sealed. You may, however, get information through a follow-up FOIA on personnel-action records (subject to other personnel-record exemptions and the personnel-file exemption in § 10002).

Q: What is the DIAA Board?
A: The Delaware Interscholastic Athletic Association regulates high-school athletics in the state. It is a public body subject to FOIA.

Q: How do I challenge a vague motion at a small body?
A: Petition within 60 days. Identify the agenda, motion, and minutes. The board will likely supply an affidavit citing this opinion. Push for the specifics: How many employees does the body have? What was the personnel issue? Was it really a competence-or-ability matter? If the body cannot answer, you have an argument.

Background and statutory framework

Delaware FOIA's open-meeting provisions sit at § 10004. Subsection (a) establishes the open-meeting baseline. Subsection (b) lists nine specific situations in which a public body may go into executive session. Subsection (b)(9) covers "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open."

Subsection (c) requires "all voting on public business" to take place at a public meeting and the results to be made public. The AG has interpreted that language in Op. 15-IB11 to require the public to be able to "discern how and when a matter is decided."

The two requirements meet when a public body votes on personnel actions. The AG has handled this through a balancing approach that weighs the public-discernment interest against the employee-privacy interest the exception was designed to protect (Op. 22-IB27; Op. 02-IB12; Op. 98-IB05). Where the staff is small, the privacy interest controls; where the staff is large or the position has independent public significance, the discernment interest controls.

Citations and references

Statutes:
- 29 Del. C. § 10004 (Open meetings)
- 29 Del. C. § 10005 (Enforcement)

Prior AG opinions:
- Del. Op. Att'y Gen. 98-IB05 (July 6, 1998), personnel exception protects "competence or ability"
- Del. Op. Att'y Gen. 02-IB12 (May 21, 2002), balance of open-discussion versus employee-privacy interests
- Del. Op. Att'y Gen. 15-IB11 (Dec. 11, 2015), public should "discern how and when a matter is decided"
- Del. Op. Att'y Gen. 22-IB27 (Aug. 19, 2022), reaffirming the balance

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/01/09/23-ib01-01-09-2023-foia-opinion-letter-to-mike-lang-re-foia-complaint-concerning-the-delaware-interscholastic-athletic-association-board-of-directors/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2023/01/Attorney-General-Opinion-No.-23-IB01.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB01
January 9, 2023

VIA EMAIL
Mike Lang
[email protected]

RE: FOIA Petition Regarding the Delaware Interscholastic Athletic Association Board of Directors

Dear Mr. Lang:

We write regarding your correspondence alleging that the Board of Directors of the Delaware Interscholastic Athletic Association ("DIAA") violated the Delaware 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. For the reasons set forth below, we find that in these circumstances, the Board did not violate FOIA at its November 10, 2022 meeting.

BACKGROUND

On November 10, 2022, the DIAA Board conducted an executive session for a "DIAA Personnel Matter." After returning to open session, the Petition alleges that a Board member called for a vote on "that thing we discussed in executive session." Minutes of the meeting indicate that the motion was "to take administrative action as discussed in executive session." The motion carried unanimously. You believe that the public has a right to know what public bodies are voting on, even when the action results from an executive session. In the Petition, you argue that the vote should be declared invalid, as there is no language giving "any indication of what the vote was about."

The DIAA's Board, through counsel, responded to the Petition ("Response") and included an affidavit from the Chair of the Board. The Chair attests that DIAA has three employees, and the Board discussed the name, competencies, and abilities of one of the three employees in this executive session. The employee did not request a public discussion of the matter. The Chair also attests that the "Board did not specify the action in an effort to protect the employee's privacy."

DISCUSSION

FOIA mandates that the meetings of public bodies, with limited exceptions, be open to the public. Although discussions of certain authorized matters are permitted in executive session, "all voting on public business must take place at a public meeting and the results of the vote made public." Executive sessions are allowed for "[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." The personnel exception for an executive session "was intended to protect the personal privacy of individual employees, and applies only when the discussion reflects on an individual's 'competence or ability.'" "This exception reflects the balance between the public interest in open discussion of governmental matters and the rights of employees to have their work performance considered in private." This Office has decided that "the import of the statute's language that 'all voting on public business must take place at a public meeting and the results of the vote made public' is that the public should be able to discern how and when a matter is decided." However, in the context of the personnel exception, any interest in public disclosure must be balanced against employees' rights to have their job performance considered in private.

The Petition alleges that the motion to take administrative action on a personnel matter discussed in the preceding executive session did not adequately describe the topic subject to vote. The Chair attests that the personnel matter involved a discussion of the competencies and abilities of one of the DIAA's three employees. As a result of the Board's discussions in executive session, it decided to take administrative action on this matter involving this employee; the Chair attests that the Board's lack of specificity in the motion was to protect the privacy of the employee. Citizens can discern from the meeting agenda and minutes that a personnel action was discussed at this meeting and the Board took action, but a small employee pool creates a heightened risk of exposing this employee's private personnel matters to the public. Based on these specific circumstances, we find that the Board did not violate FOIA by failing to describe the personnel action with more specificity.

CONCLUSION

For the foregoing reasons, we determine that in these circumstances, the DIAA Board did not violate FOIA at its November 10, 2022 meeting by failing to describe more specifically the personnel matter subject to vote.

Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General

cc: Laura B. Makransky, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General