DE 24-IB46 2024-10-25

How specific does a Delaware public body's agenda have to be when noticing an executive session for legal advice?

Short answer: No violation. The AG ruled the Diamond State Port Corporation Board did not violate FOIA. Its agenda label of 'strategy sessions involving legal advice' adequately noticed the executive session, and an Executive Director's affidavit confirmed the labor strike was discussed publicly, not privately.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

24-IB46 10/25/2024 FOIA Opinion Letter to Randall Chase re: Diamond State Port Corporation

Plain-English summary

Before the September 27, 2024 Diamond State Port Corporation (DSPC) Board meeting, AP reporter Randall Chase filed a preemptive FOIA petition. The agenda noticed an executive session for "strategy sessions involving legal advice and to discuss the content of documents excluded from the definition of 'public record' in §10002 of Title 29." Chase argued (1) that bare "legal advice" is not a permitted executive-session ground (FOIA only allows executive sessions for "strategy sessions involving legal advice with respect to collective bargaining or pending or potential litigation when an open meeting would adversely affect the body's bargaining or litigation position"), and (2) that if the Board planned to discuss the labor strike privately, that topic would not qualify.

The AG sided with the DSPC. The Executive Director's affidavit attested that the executive session was for legal advice related to pending litigation, fitting § 10004(b)(4)'s strategy-sessions exemption. On agenda specificity, the AG cited O'Neill v. Town of Middletown for the rule that public bodies do not need to "elaborate in great detail" on agendas about what legal subjects will be discussed; "strategy sessions involving legal advice" was sufficient under O'Neill's standard. On the labor strike concern, the Executive Director swore under oath that the strike was not discussed in executive session and was instead addressed during an open-session item. The two-track defense (correct executive-session ground plus sworn evidence about what was actually discussed) cleared both prongs of Chase's challenge.

What this means for you

If you are a Delaware public body

"Strategy sessions involving legal advice" is acceptable agenda language for executive sessions under § 10004(b)(4), as long as the underlying discussion really is strategy with respect to collective bargaining or pending/potential litigation. If a reporter or watchdog files a preemptive petition like the one here, the response template is: an Executive Director or counsel affidavit confirming the actual subject matter, plus a citation to O'Neill. Do not over-elaborate on the agenda itself; over-specificity can compromise the very strategy you are protecting.

If you are a journalist or watchdog

Agenda preemptive petitions sometimes work, sometimes do not. The risk to the body filing one before the meeting is that the public body just goes ahead, takes its session, then provides an affidavit afterward. The AG accepts those affidavits as evidence about what actually happened. Save your strongest arguments for cases where you have evidence (a leaked agenda packet, prior pattern, or contemporaneous reporting) that the body's stated reason is not its actual reason.

If you work in public-sector labor relations

Discussion of "the labor strike" itself, in the abstract, is not a permitted executive-session topic just because it is sensitive. Strategy sessions involving collective bargaining are permitted under § 10004(b)(4), but "discussing the labor strike" without that strategy framing is open-session material. The DSPC handled this correctly here: it discussed strike-related matters in open session.

Common questions

What's "strategy sessions involving legal advice" actually authorized for?

Section 10004(b)(4) authorizes executive sessions for "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." Three pieces: (1) it is a strategy session, (2) it concerns collective bargaining or pending/potential litigation, and (3) open discussion would adversely affect the body's position.

Does the agenda need to name the litigation?

No. O'Neill v. Town of Middletown held that public bodies do not have to "elaborate in great detail" about what legal or personnel subjects will be discussed. "Strategy sessions involving legal advice" or "Legal Issues" or "Legal & Personnel Issues" all passed muster in O'Neill and subsequent AG opinions. Naming specific cases or counterparties could undercut the very strategy the executive session protects.

What about the labor strike at the Port?

The Port had been dealing with labor unrest in fall 2024. Chase's preemptive concern was that the Board might use "legal advice" as a pretext to discuss strike strategy privately. The AG accepted the Executive Director's sworn statement that the strike was discussed only in open session, not in executive session, and that the executive session itself was for legal advice on pending litigation, not the strike.

Could the petition still have succeeded if the Board did discuss the strike privately?

Yes, with evidence. The AG's deference to the Executive Director's affidavit was based on the fact that no contradicting evidence was offered. A reporter inside the meeting hearing the executive session subject matter referenced (or someone leaking the executive session minutes) might have changed the result. Without that, the affidavit controlled.

Background and statutory framework

29 Del. C. § 10001 sets FOIA's purpose: government accountability through open meetings and access to public records. § 10004 establishes the open-meeting rule. § 10004(b) lists nine grounds for executive session, including § 10004(b)(4)'s strategy sessions for collective bargaining or pending/potential litigation. § 10002(a) requires the agenda to state any executive session and the specific ground for it.

The agenda-specificity standard comes from O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007), which held that descriptors like "Personnel & Legal Issues" or "Legal Issues" are adequate. The Court explained that requiring more detail would conflict with the executive-session privacy that the descriptor is supposed to enable.

The public body's burden is set by 29 Del. C. § 10005(c). After Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), an affidavit may be required. The DSPC's Executive Director affidavit met both burdens: it confirmed the executive session topic was legal advice on pending litigation, and it confirmed the labor strike was discussed in open session.

Citations

29 Del. C. §§ 10001-10008 (Delaware FOIA)
29 Del. C. § 10001 (FOIA purpose)
29 Del. C. § 10002(a) (agenda requirements)
29 Del. C. § 10004 (open meetings)
29 Del. C. § 10004(b) (executive session grounds)
29 Del. C. § 10004(b)(4) (strategy sessions on bargaining or litigation)
29 Del. C. § 10005 (petition procedure)
29 Del. C. § 10005(c) (burden of proof)
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
O'Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007)

Source

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. 24-IB46
October 25, 2024

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. §§ 10001-10008 ("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 did not violate FOIA by failing to give sufficient notice of the executive session regarding legal advice on its September 27, 2024 meeting agenda. We also find that the DSPC did not violate FOIA by discussing the labor strike in executive session, as the DSPC provided sworn evidence that this topic was not discussed in executive session at the meeting.

BACKGROUND

Prior to the September 27, 2024 Diamond State Port Corporation Board of Directors meeting, you filed this Petition, alleging that the DSPC was about to violate FOIA. The September 27, 2024 meeting agenda noticed a "[m]otion to move into executive session for strategy sessions involving legal advice and to discuss the content of documents excluded from the definition of 'public record' in §10002 of Title 29," which you contend does not sufficiently specify the reason for an executive session to receive legal advice.[1] You point out that FOIA does not have a blanket exception for legal advice. Further, if the DSPC planned a discussion of the potential labor strike in this session, you allege that this topic is not permitted for executive session.

On October 8, 2024, counsel for the DSPC replied to this Petition on the DSPC's behalf ("Response") and attached the affidavit of the Executive Director of the DSPC. The Executive Director attests that the session was for legal advice related to pending litigation. The DSPC asserts that the notice requirements for executive sessions are less stringent, and its notice for this executive session, "strategy sessions involving legal advice," was appropriate. In addition, the Executive Director stated under oath that discussion of a labor strike was not planned for executive session and was not discussed therein; rather, this topic was addressed publicly under an open session item on the agenda.

DISCUSSION

The public body has the burden of proof to "justify a decision to meet in executive session or any failure to comply with [FOIA]."[2] In certain circumstances, a sworn affidavit may be required to meet that burden.[3]

FOIA's purpose is to ensure government accountability by providing Delaware's citizens access to open meetings, as well as access to the public records of those entities.[4] FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public. Public bodies, with proper notice of the intent to enter an executive session on its agenda, may hold an executive session to discuss one of the nine topics that are outlined in the statute.[5] One of those topics is "[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body."[6] FOIA requires an agenda to include "a statement of intent to hold an executive session and the specific ground or grounds therefor under § 10004(b) of [FOIA]."[7] However, public bodies are not required to elaborate the reasons for executive sessions in great detail, and the reason given here, "strategy sessions involving legal advice," is sufficiently specific to satisfy the requirements of FOIA.[8]

In addition, the Petition, which was filed before the meeting, contends that the topic of a labor strike was potentially planned for this executive session, and if so, this topic is inappropriate for executive session. In reply, the DSPC provided the Director's sworn testimony, clarifying that the labor strike was not discussed in executive session, but instead, this matter was publicly discussed at the September 27, 2024 meeting. As such, the DSPC met its burden of demonstrating, with competent evidence, that it did not violate FOIA in this regard.

CONCLUSION

For the reasons set forth above, we conclude that the DSPC did not violate FOIA by failing to give sufficient notice of the executive session regarding legal advice on its September 27, 2024 meeting agenda. In addition, we find that the DSPC did not violate FOIA by discussing the labor strike in executive session, as the DSPC provided sworn evidence that this topic was not discussed in executive session at the meeting.

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, Attorney for Diamond State Port Corporation

[1] Petition.
[2] 29 Del. C. § 10005(c).
[3] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[4] 29 Del. C. § 10001; Judicial Watch, 267 A.3d at 1004.
[5] 29 Del. C. § 10004.
[6] 29 Del. C. § 10004(b)(4).
[7] 29 Del. C. § 10002(a).
[8] See, e.g., O'Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007) (stating the "statute requires public bodies to provide the reason for entering into an executive session, but that does not require public bodies to elaborate in great detail on agendas what legal, personnel, or other subjects are to be discussed" and determining that "Personnel & Legal Issues" and "Legal Issues" are adequate descriptors on the executive session agendas).