When a Delaware public body holds an executive session, can people who are not board members attend, and how specific does the executive session agenda have to be?

Official title

23-IB18 06/26/2023 FOIA Opinion Letter to Randall Chase re: FOIA Complaint Concerning the Diamond State Port Corporation

Plain-English summary

The Diamond State Port Corporation (DSPC) is a quasi-public corporation that owns and operates the Port of Wilmington. Its Board met on May 22, 2023. The original agenda listed an executive session with several alternative grounds. Just before the meeting, AP reporter Randall Chase filed a FOIA petition arguing the multi-ground listing was an improper "catchall." DSPC responded by revising the agenda the same day to keep just two grounds: "strategy sessions involving legal advice or the content of documents excluded from the definition of 'public record.'" The revised agenda was posted at or near the start of the meeting.

Chase filed a second petition challenging two things. First, the timing: the revision was not posted six hours in advance as FOIA's "catch-up" rule for late agenda postings requires. Second, the substance: the executive session attendees included non-members, and DSPC failed to demonstrate why each non-member needed to be there.

The AG split the decision. On the agenda, DSPC was within FOIA's express provision for deleting items from an agenda, which is allowed without the six-hour rule applying. The Executive Director's affidavit said DSPC originally intended to discuss the longer list, then narrowed when its plans firmed up before the meeting; the AG accepted that. The AG cautioned, however, against the practice of listing speculative grounds and then deleting them as a workaround.

On the attendees, DSPC failed. The Executive Director's affidavit named the non-members but did not explain under oath why each one was necessary for the authorized purpose. The AG found a FOIA violation and recommended DSPC update its Board procedures so that only non-members necessary for the executive session's authorized purpose may attend in the future.

What this means for you

For Delaware public body chairs and board secretaries. When an executive session needs non-member attendees (counsel, the minute-taker, a subject-matter expert), document at the time of the meeting why each non-member is necessary for the authorized executive-session ground. Tie each attendee to a specific purpose. If you are later challenged, your affidavit must say more than "X attended"; it must say "X attended because the executive session was authorized for legal-strategy purposes and X is a partner at our litigation firm" or similar. A name list alone is insufficient.

For a public body that needs to amend an agenda close to a meeting. Deletion of items is broader than addition. You may delete items, including dropping an executive session entirely, without the six-hour-advance rule applying. Adding items is far more restricted, and "items that come up suddenly and cannot be deferred" is the only safe path. In practice: prefer to start with a tighter agenda and add via the Section 10004(e) emergency mechanism, rather than starting broad and deleting at the last minute.

For journalists covering Delaware public bodies. This opinion is the AG's clearest recent statement that "we name everyone but tell you nothing about why they're there" is not enough to defend an executive-session attendee list. It is also a reminder that you can FOIA-petition both the agenda problem and the attendee problem in the same letter, and the AG will rule on each separately.

For city/county solicitors advising commissions and authorities. Use this opinion to push your client toward an internal policy: every executive session minutes record should note the attendees and a short why-they-are-here line tied to the executive-session ground. That sets up the affidavit that wins the FOIA petition without scrambling.

Common questions

What does FOIA actually allow as grounds for an executive session?
29 Del. C. § 10004(b) lists nine narrow grounds. The two on DSPC's final agenda were strategy on legal advice and discussion of documents excluded from the public-record definition. Other grounds include personnel matters where the discussion will name individuals, pending or potential litigation, collective bargaining strategy, and a few more. "General discussion of policy" is not on the list.

Can a public body invite a member of the public into executive session as an observer?
No. The AG has been consistent on this since at least 2002. Inviting one person but not others turns the executive session into an open meeting that should be open to all, because the invited person's interest is indistinguishable from the public's. The exception is non-members who are necessary to conduct the session for the authorized purpose, such as counsel for a legal-strategy session, an HR director for a personnel matter, or a stenographer.

What's a "catchall" executive session agenda?
The 1994 Chemical Industries Council decision flagged the practice of listing several speculative grounds plus an "any other purpose" clause, then deciding what to discuss in the room. The Court of Chancery called that out as inconsistent with FOIA's requirement of "specific ground or grounds." DSPC's two-ground listing was not a catchall, but the AG's footnote 10 in this opinion warned against using broad listings as a hedge. Pick the actual grounds you intend to discuss.

What's the consequence of an attendees violation?
The AG recommends remediation: revise Board procedures so only necessary non-members attend, and document the reason for each non-member's presence. The AG does not order monetary penalties; the AG can recommend that the agency void any action taken at the offending session, but here no votes were taken in executive session.

Why was the timing argument rejected?
Because FOIA expressly allows deletion of agenda items, including the executive session itself, without the six-hour rule. The relevant text is 29 Del. C. § 10004(e), which permits deletions; the six-hour limit applies to additions or to late-posted agendas, not to subtractions.

Background and statutory framework

29 Del. C. § 10004 sets the open-meetings rule: meetings of public bodies are open to the public unless one of the nine § 10004(b) executive-session grounds applies. Section 10002(a) requires a meeting agenda to include a "general statement of the major issues expected to be discussed at a public meeting" and a "statement of intent to hold an executive session and the specific ground or grounds" for the session.

Section 10004(e)(3) requires public bodies to post a notice and agenda at least seven days before a regular meeting; if not feasible, a public body may post up to six hours before, with a brief statement of the reason for the delay. Section 10004(e) expressly permits deletions, including dropping an executive session, without triggering the six-hour rule. AG opinion 11-IIB11 (Aug. 17, 2011) confirms FOIA does not require any reason for removing an agenda item.

Section 10005(c) places the burden of proof on the public body. Per Judicial Watch, Inc. v. Univ. of Del., a sworn affidavit is often required to meet that burden. The AG looks for affidavits from individuals with direct knowledge of the disputed facts.

The "non-members necessary for the authorized purpose" rule traces back to AG opinion 02-IB17 (Aug. 6, 2002), reiterated in 13-IB01 (Mar. 26, 2013) and elsewhere.

Citations

• 29 Del. C. § 10002(a): agenda content requirements
• 29 Del. C. § 10004: open meetings rule
• 29 Del. C. § 10004(b): executive session grounds
• 29 Del. C. § 10004(e), (e)(2), (e)(3): agenda timing and deletion
• 29 Del. C. § 10005, § 10005(c): petition jurisdiction; burden of proof
• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): affidavit requirement
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994): catchall agenda grounds; closed sessions narrowly construed
• O'Neill v. Town of Middletown, 2007 WL 1114019 (Del. Ch. Mar. 29, 2007): adequate notice on executive-session agenda
• Del. Op. Att'y Gen. 02-IB17 (Aug. 6, 2002): non-member attendees rule
• Del. Op. Att'y Gen. 11-IIB11 (Aug. 17, 2011): deletion of agenda items
• Del. Op. Att'y Gen. 13-IB01 (Mar. 26, 2013): non-member attendees in executive session
• Del. Op. Att'y Gen. 18-IB09 (Feb. 12, 2018): multiple-grounds listing
• Del. Op. Atty. Gen. 05-IB15 (Jun. 20, 2005): agenda amendment scope

Source

• Landing page: https://attorneygeneral.delaware.gov/2023/06/26/23-ib18-06-26-2023-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/50/2023/06/Attorney-General-Opinion-No.-23-IB18.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-IB18
June 26, 2023

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 Diamond State Port Corporation ("DSPC") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this 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 discussed more fully herein, we determine that the DSPC violated FOIA by failing to meet its burden of demonstrating its executive session attendees were appropriate. In addition, we conclude no violation of FOIA occurred in relation to the Petition's allegations about the May 22, 2023 executive session agenda.

BACKGROUND
The DSPC held a Board of Directors meeting on May 22, 2023. The original agenda indicated an executive session and listed "strategy sessions involving legal advice" and "the content of documents excluded from the definition of 'public record,'" in addition to several other grounds. Before the meeting, you filed a petition, alleging that the listing of alternative grounds on the executive session agenda was improper under FOIA. Upon receipt of your initial petition on the day of the meeting, the DSPC revised its agenda to narrow "the list of topics to those that were, at the time the revised agenda was posted, intended to be discussed while in executive session." The two remaining purposes on the May 22, 2023 agenda were "strategy sessions involving legal advice or the content of documents excluded from the definition of 'public record' in § 10002 of Title 29." The initial petition was dismissed, and this Petition followed.

This Petition alleges that because the initial petition was received so close to the meeting, the DSPC could not have posted the revised agenda within six hours of the meeting as required; that the agenda failed to include a reason for the posting delay; and that the DSPC did not demonstrate that the issues came up unexpectedly and could not be deferred. You contend that the grounds for the executive session agenda are not sufficiently specific, as the DSPC listed two possible reasons for the executive session. Executive sessions are closed to the public, except for nonmembers who are necessary for the discussions. However, you believe that the DSPC may have improperly permitted nonmembers to attend the executive session.

On June 1, 2023, the DSPC's counsel replied to the Petition on the DSPC's behalf ("Response"). The DSPC cites to Section 10004(e)(3) which provides that an agenda is subject to change, to include the addition of items that arise at the time of the meeting and the deletion of items, including executive sessions. The DSPC provided an affidavit of its Executive Director attesting that when the agenda was prepared, and when the agenda was subsequently revised, those topics were intended to be discussed. The affidavit also identifies all the attendees of the executive session, including Board members and certain nonmembers. The Board's counsel states that all the attendees were either a Board member or an advisor or other individual invited to provide subject matter expertise relating to the subject for which the executive session was authorized.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. In certain circumstances, a sworn affidavit may be required to meet that burden. FOIA requires the meetings of public bodies, with certain delineated exceptions, to be open to the public. "FOIA contemplates that a closed session must be the exception, not the rule, for how a public body conducts its public business." FOIA mandates that an agenda include a general statement of "the major issues expected to be discussed at a public meeting" and a "statement of intent to hold an executive session and the specific ground or grounds" for the session. In addition, FOIA requires a public body to post a notice and agenda at least seven days prior to a regular meeting but if an agenda is not available at the time of posting, a public body may post an agenda up to six hours prior to a meeting, provided that the reason for the delay is set forth briefly in the agenda. "[T]his exception does not authorize a public body to amend the agenda prior to a meeting for any reason, but rather applies to add[ing] 'items that come up suddenly and cannot be deferred to a later meeting.'" However, FOIA expressly states that the deletion of items, including executive sessions, is permitted.

In this case, the DSPC deleted several topics from the originally-posted executive session agenda on the day of the meeting, but two items remained: "strategy sessions involving legal advice or the content of documents excluded from the definition of 'public record.'" To meet its burden, the DSPC provided sworn testimony that its intent at the time of the original agenda was to discuss the longer list of items, and when the DSPC narrowed the list of bases for its executive session, it did so to reflect the items intended for discussion. As the DSPC is allowed under FOIA to delete items from its agenda, we determine that the DSPC did not violate FOIA by deleting the several topics originally intended for its executive session.

Although we find, based on the sworn statements, that the Board did not violate FOIA in this instance, we wish to give a cautionary note against a practice of citing grounds for an executive session without the actual intent to discuss those items at the meeting and deleting the unnecessary items closer to or at the meeting. An agenda must include the items that the public body intends to discuss in private. Including items that are not actually intended for discussion would be a violation of the spirit and letter of FOIA.

With respect to the executive session attendees, FOIA allows, for certain defined purposes, public bodies to "hold an executive session closed to the public." As executive sessions are private and allowing certain members of the public, to the exclusion of others, to attend would convert the session into an open session, mere observers are not permitted to attend. Although nonmember observers may not be present, nonmembers who are necessary to conduct the executive session for the authorized purpose(s) may be permitted to attend, such as nonmember staff responsible for taking minutes and nonmembers providing information related to the subject matter authorized for discussion in the executive session.

In this case, the DSPC's Executive Director identifies the nonmembers who attended the executive session, but the DSPC did not provide statements under oath specifying why those nonmembers attended. As such, we find that the DSPC has not met its burden of proof and find the DSPC violated FOIA by permitting nonmembers to attend the executive session. As remediation, we recommend that the DSPC ensure that its Board procedures reflect that only nonmembers necessary to conduct the executive session for the authorized purpose(s) be permitted to attend future executive sessions.

CONCLUSION
For the reasons set forth above, we do not find a violation regarding the Petition's allegations about the May 22, 2023 executive session agenda. We further find that the DSPC violated FOIA by failing to meet its burden of demonstrating its executive session attendees were appropriate.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Katherine H. Betterly, Counsel to the Diamond State Port Corporation