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

A reporter who attended a Brandywine School District employee's public termination hearing requested the hearing officer's report and all hearing exhibits. The District declined. It said the employee had requested the public hearing but later asked that the report and exhibits be kept confidential. The reporter argued that the public hearing and the public interest in the findings favored disclosure.

The AG found no FOIA violation. Although the hearing was public, the requested report and exhibits still had to be analyzed under FOIA's records exemptions. Section 10002(o)(1) excludes a personnel file when disclosure would invade personal privacy. The AG cited Vanella ex rel. Delaware Call v. Duran for the description of a personnel file as information ordinarily used to decide traditional employment actions. It found these termination-hearing records within that definition and said the hearing concerned the employee's personal privacy.

The District had raised uncertainty about the employee's post-hearing request for confidentiality. The AG reached its decision under the personnel-file exemption and did not resolve whether an employee can retract a request for a public hearing or what that retraction would do.

What this means for you

If you attended a public employee termination hearing

Attendance at the hearing did not entitle this reporter to the hearing officer's report or exhibits under FOIA. The AG examined those requested records under the personnel-file exemption and found that Brandywine could withhold them. The decision concerns the report and exhibits requested here, including exhibits entered at the hearing.

If you handle personnel-record requests for a school district

The opinion connects the hearing officer's report and exhibits to the employee's termination and personal privacy. Its quoted exemption contains both a personnel-file element and an invasion-of-personal-privacy element. The AG found both relevant here; it did not announce that every document in an employee file is automatically exempt.

If you are the employee in a public termination hearing

The employee initially requested a public hearing and later asked for the report and exhibits to remain confidential. The District honored that request, but the AG's stated reason for upholding the FOIA denial was the personnel-file exemption. The opinion does not decide the legal effect of withdrawing consent to a public hearing.

Common questions

Does a public hearing make the hearing officer's report public under FOIA?

Not in this case. The AG said records requested from the body that held the hearing remain subject to FOIA's exemptions even when the hearing itself was open. It found this report and the hearing exhibits within the personnel-file exemption.

Did the AG decide whether the employee could retract the public-hearing request?

No. The District raised that as an unresolved issue. The AG decided the petition under § 10002(o)(1) and did not rule on the effect of the later privacy request.

Is every document used in an employment decision exempt?

The opinion does not say so. It quotes § 10002(o)(1), which requires that disclosure of a personnel file "would constitute an invasion of personal privacy." The AG applied that language to records concerning this employee's termination hearing.

Were exhibits entered at the public hearing included in the ruling?

Yes. The reporter requested all exhibits associated with the hearing, and the AG expressly addressed the "hearing officer's report and exhibits" in finding no FOIA violation. The opinion does not separately analyze individual exhibits.

Background and statutory framework

Section 10002(o)(1) excludes a "personnel, medical or pupil file" from public records where disclosure would constitute an invasion of personal privacy. The opinion cited Vanella ex rel. Delaware Call v. Duran for a personnel-file definition tied to promotion, demotion, reassignment, dismissal, and other traditional personnel actions. The AG said the requested termination-hearing records fell within that definition and that such a hearing concerned personal privacy. That was enough for its no-violation finding on this request.

Citations

• 29 Del. C. § 10002(o)(1) (personnel-file and privacy exemption)
• 29 Del. C. § 10004(b)(8) (public employee hearing option cited in the opinion)
• Vanella ex rel. Delaware Call v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024) (personnel-file definition)

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