If a Delaware school employee asked for a public termination hearing and then changed their mind, can a journalist still get the hearing officer's report and exhibits under FOIA?
Plain-English summary
Isabel Hughes, a reporter at Delaware Online / The News Journal, attended a Brandywine School District termination hearing for a District employee in January 2025. The hearing was held publicly because the employee had asked for it to be open under 29 Del. C. § 10004(b)(8). After the hearing concluded, the employee changed course and asked the District to keep the hearing officer's report and exhibits confidential going forward.
On February 10, 2025, Hughes filed a FOIA request for the hearing officer's report and recommendation, plus all exhibits associated with the hearing. The District denied. It explained that whether FOIA shielded the documents was "unclear" given the rescission, but "out of an abundance of caution, and in recognition of the confidentiality protections that normally apply to employee disciplinary/matters/hearings," it would not produce them.
Hughes petitioned. Her main arguments: the hearing was public, the rescission did not retroactively make the report confidential, and the records did not contain personal information warranting personnel-file protection.
The Deputy AG ruled for the District. The personnel file exemption at 29 Del. C. § 10002(o)(1) applies to records concerning an employee's termination hearing, regardless of whether the hearing itself was open. The opinion relied on the Vanella v. Duran definition of personnel file: "a file containing information that would, under ordinary circumstances, be used in deciding whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to such other traditional personnel actions." A termination hearing record is squarely within that definition.
The opinion does not directly address the broader question of whether an employee can revoke consent to a public hearing after the hearing concludes. The District flagged that issue as undecided in Delaware law, and the AG sidestepped it by deciding on the personnel-file exemption instead.
What this means for you
If you're a journalist covering a public-employee termination hearing
The opinion holds that even where the termination hearing itself was open, the hearing officer's report and exhibits "are still analyzed under the exemptions set forth in the FOIA statute," and that those records fall within the personnel file exemption at § 10002(o)(1). The fact that the public attended the hearing did not make the resulting documents public records.
If you're a Delaware public employee facing a termination hearing
The opinion holds that records concerning an employee's termination hearing fall within the personnel file exemption because such a hearing "concerns an employee's personal privacy." Here the employee had requested a public hearing under § 10004(b)(8) and then rescinded that request afterward; the AG decided the case on the personnel-file exemption and did not rule on whether the rescission itself resealed the record.
If you advise a Delaware school district or other public employer
The opinion holds that hearing officer reports and exhibits in a termination matter are exempt under § 10002(o)(1), applying the Vanella v. Duran definition of a personnel file (information used in deciding "whether an individual should be promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to such other traditional personnel actions"). It expressly notes the District itself flagged the rescission-of-consent question as undecided in Delaware and that the District acted "out of an abundance of caution"; the AG resolved the case on the exemption rather than the rescission.
If you're a Delaware open-government advocate
The opinion holds that the operative documents from a termination hearing (the hearing officer's findings and the exhibits) remain within the personnel file exemption even when the hearing is conducted in public. It does not address whether that result should differ when an employee elects a public hearing; that question was raised but not decided.
Common questions
Q: Wasn't the rescission of consent the real issue here?
A: Yes, in legal terms. The District flagged the question as undecided: can an employee revoke an earlier choice for a public hearing and thereby reseal the record? The AG avoided deciding it by ruling on personnel-file grounds instead. So the rescission question remains open in Delaware FOIA law.
Q: Doesn't FOIA require narrow construction of exemptions?
A: Yes, but the personnel file exemption is structural. Once a record fits the Vanella v. Duran definition (used in deciding personnel actions), the exemption applies. There is no narrowness lever once the record is on the personnel-file side of the line.
Q: What if the hearing officer's report had been entered into evidence at the public hearing?
A: The opinion does not address whether items presented as exhibits during the public hearing changed status. As a journalist who attended, you may have notes on the substance. The legal question of whether copies of those exhibits remain personnel-file protected is not squarely answered here, but the District treated all hearing exhibits as part of the personnel file and the AG did not push back on that.
Q: What about the school board's vote on the recommendation?
A: The vote is a public-meeting action and is part of the public record (motion language, roll call). The substance of the recommendation itself, as a written document, may be withheld under the personnel exemption.
Q: Did the employee's request for privacy drive the result?
A: The District chose to honor the employee's post-hearing request "out of an abundance of caution," but the AG's holding rests on the personnel file exemption itself: records concerning a termination hearing fall within § 10002(o)(1) because they concern the employee's personal privacy.
Citations
- 29 Del. C. § 10002(o)(1), personnel file exemption
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10004(b)(8), executive session for employee disciplinary or dismissal cases unless employee requests public hearing
- 29 Del. C. § 10005(c): burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- Vanella ex rel. Delaware Call v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024), definition of personnel file
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/04/08/25-ib22-4-08-25-foia-opinion-letter-to-isabel-hughes-delaware-online-the-news-journal-re-brandywine-school-district/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/04/Attorney-General-Opinion-No.-25-IB22.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
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. 25-IB22
April 8, 2025
VIA EMAIL
Isabel Hughes
Delaware Online/The News Journal
[email protected]
RE:
FOIA Petition Regarding the Brandywine School District
Dear Ms. Hughes:
We write in response to your correspondence, alleging that the Brandywine School District
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 of whether a
violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine
that the District did not violate FOIA in denying access to these records, as the requested records
are not public records under Section 10002(o)(1).
BACKGROUND
On February 10, 2025, you submitted a FOIA request for "the report/recommendation from
the hearing office[r] in the termination hearing of [a specified District employee], held in January
2025" and "all exhibits associated with the hearing."1 The District replied that this employee
requested a public hearing but has subsequently rescinded that consent and asked that further
proceedings be confidential. The District stated it is unclear whether FOIA would shield the
documents you seek from disclosure but "out of an abundance of caution, and in recognition of
1
Petition.
1
the confidentiality protections that normally apply to employee disciplinary/matters/hearings,"
the request was denied.2 This Petition followed.
In the Petition, you argue that the hearing officer's report is a public record, as it is based
on the public termination hearing, which you and other members of the public attended. You
allege that the rescission of the consent for a public hearing does not convert the hearing officer's
report into a confidential record. Any exemptions must be narrowly construed, and you assert that
due to the public nature of the hearing, the public has a vested interest in understanding the findings
of the hearing officer. In addition, you believe that these report and hearing exhibits do not contain
any sensitive or personal information that would warrant nondisclosure under the personnel file
exemption.
The District, through its legal counsel, replied to the Petition ("Response"). The District
states that the open meeting provisions allow a public body to hold an executive session for an
employee dismissal, unless the employee requests a public hearing. Here, although the employee
asked for the hearing to be open to the public, the employee rescinded this decision after the
hearing and requested that the hearing officer's report and the exhibits entered into evidence be
kept confidential, if possible. The District points out that although FOIA strongly favors
transparency and access to public records, the need for access to information must be balanced
against legitimate privacy claims associated with personal information. The District states that the
personnel records exemption in Section 10002(o)(1) protects these records and that this issue,
"whether an employee can subsequently revoke their request for a public hearing and, if so,
whether such a revocation can effectively shield records from disclosure under either Sections
10004(b)(8) and/or 10002(o)(1)," has not been previously decided, and out of an abundance of
caution, the District has chosen to honor the employee's request for privacy in this case.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.3 The public body has the burden of proof to justify its denial of
access to records.4 In certain circumstances, a sworn affidavit may be required to meet that
burden.5 In this case, the hearing officer's report and exhibits concern an employee's termination.
While the hearing was held publicly, the records requested from the public body holding the
hearing are still analyzed under the exemptions set forth in the FOIA statute. The personnel file
exemption excludes any "personnel, medical or pupil file, the disclosure of which would constitute
an invasion of personal privacy, under this legislation or under any State or federal law as it relates
2
Id.
3
29 Del. C. § 10003(a).
4
29 Del. C. § 10005(c).
5
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
2
to personal privacy."6 This exception has been described as "a file containing information that
would, under ordinary circumstances, be used in deciding whether an individual should be
promoted, demoted, given a raise, transferred, reassigned, dismissed, or subject to such other
traditional personnel actions."7 Records pertaining to an employee's termination hearing are
included in this definition, and an employee's termination hearing concerns an employee's
personal privacy.8 Thus, we find that the District has not violated FOIA, as these requested records
fall within the personnel file exemption.
CONCLUSION
For the reasons set forth above, we conclude that the District did not violate FOIA in
denying access to these records, as the requested records are not public records under Section
10002(o)(1).
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc:
Michael P. Stafford, Attorney for the Brandywine School District
6
29 Del. C. § 10002(o)(1).
7
Vanella ex rel. Delaware Call v. Duran, 2024 WL 5201305, at *10 (Del. Super. Dec. 23,
2024) (citation omitted).
8
See 29 Del. C. § 10004(b)(8) (A public body may call for an executive session closed to
the public pursuant to subsections (c) and (e) of this section, but only for the following purposes:
. . . "[t]he hearing of employee disciplinary or dismissal cases unless the employee requests a
public hearing").
3