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. FOIA requires that "all voting on public business must take place at a public meeting and the results of the vote made public." The opinion reads that language to mean "the public should be able to discern how and when a matter is decided."
• Employee privacy. The personnel exception lets a body discuss in executive session "[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 opinion describes that exception as protecting "the personal privacy of individual employees" and reflecting "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, that the employee did not request a public discussion, and that the Board's lack of specificity in the motion "was to protect the privacy of the employee." The AG found that, on these specific facts, citizens could discern from the agenda and minutes that a personnel action was discussed and acted on, but a small employee pool created "a heightened risk of exposing this employee's private personnel matters." On those circumstances, the vague motion was not a FOIA violation.

The opinion is expressly limited to "these specific circumstances": a small public body where more specificity in the motion would effectively identify the employee. It does not address how the balance comes out for larger bodies or positions of independent public significance.

What this means for you

If you serve on a small Delaware public body or board

The opinion holds that a public body did not violate FOIA when it voted publicly "to take administrative action as discussed in executive session" without naming the action, on facts where the body had only three employees and the matter concerned the competency and abilities of one of them. Three facts mattered to the holding: the Board Chair attested under oath that the matter involved one of three employees, that the employee did not request a public discussion, and that the vagueness was "to protect the privacy of the employee." The opinion does not treat this as a general license for vague motions; it rests on the small employee pool and the personnel-privacy purpose.

If you are a citizen reading this opinion

The opinion holds that the public could still "discern how and when a matter is decided" because the agenda and minutes showed that a personnel matter was discussed in executive session and that the Board then took action by public vote. What it allowed was leaving the specific action out of the motion, and only because naming it would have exposed private personnel information about one of three employees. The opinion does not address what you can obtain through a later records request.

If you advise public bodies as counsel

The opinion describes a balancing test: the public-discernment interest behind the public-voting requirement is weighed against the employee-privacy interest the personnel exception protects. The holding turned on a sworn affidavit establishing the small staff size, the personnel nature of the matter, and the employee's choice not to request a public discussion. The opinion is careful to confine itself to "these specific circumstances."

If you are a Delaware public employee facing a personnel action

The opinion notes that the personnel exception applies "unless the employee or student requests that such a meeting be open." Here the employee did not request a public discussion, and the Board kept the motion vague to protect the employee's privacy. The opinion treats the employee's privacy in their "competence or ability" as the interest the exception is designed to protect.

Common questions

Q: Doesn't FOIA require all votes to be public?
A: Yes. The opinion restates that "all voting on public business must take place at a public meeting and the results of the vote made public," and it does not change that. The DIAA Board did vote in public. The only question was how specifically the motion had to describe the matter that had been discussed in executive session.

Q: Why did the small staff size matter?
A: The opinion reasoned that with only three employees, "a small employee pool creates a heightened risk of exposing this employee's private personnel matters to the public." In that setting, more specificity in the motion would have effectively identified the affected employee, defeating the privacy purpose of the personnel exception.

Q: What if the employee wants the public to know?
A: The personnel exception applies "unless the employee or student requests that such a meeting be open." In this case the employee did not request a public discussion. The opinion treats that fact as part of why the privacy interest controlled.

Q: What is the DIAA Board?
A: The Delaware Interscholastic Athletic Association is a public body subject to FOIA. Its Board of Directors held the November 10, 2022 meeting at issue in this petition.

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 opinion reads that language to require that "the public should be able to discern how and when a matter is decided."

The two requirements meet when a public body votes on personnel actions. The opinion resolves the tension through a balancing approach: it weighs the public-discernment interest against "employees' rights to have their job performance considered in private," the interest the personnel exception was designed to protect. On the facts here, a three-employee staff, an employee who did not ask for a public discussion, and a sworn explanation that vagueness protected that employee's privacy, the opinion found no violation, while expressly confining itself to "these specific circumstances."

Citations and references

Statutes:

• 29 Del. C. § 10004 (Open meetings)
• 29 Del. C. § 10005 (Enforcement)

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