When a Delaware school district employee separates and asks for the separation agreement and related records, are those documents exempt as a personnel file?

Plain-English summary

Phillip Hudson, a former Christina School District employee, filed a FOIA request on June 13, 2025 for records related to his separation from employment: the separation agreement, board meeting minutes or memoranda discussing or approving the separation, internal communications about why the District entered the agreement, and personnel file entries about the separation.

The District extended the response time and then said: yes, we have responsive records, but they are confidential and you must visit the District office in person with two forms of ID to review them. Hudson said he could not visit due to schedule issues and asked for mailed records. The District declined.

Hudson petitioned with three claims:
1. The two-form-ID and in-person verification requirements violated FOIA.
2. Refusing email or mail delivery violated FOIA.
3. The August 5, 2025 extended response deadline was missed.

The District's response, with the CFO's affidavit, argued: the records are personnel file under § 10002(o)(1) and exempt; the in-person ID requirement is the District's policy for personnel file access (a separate, non-FOIA process); FOIA does not require email/mail delivery; the response was timely.

The AG's analysis:

1. In-person ID requirement and email/mail refusal: outside FOIA. The District acknowledged that personnel file access is a separate process, governed by employer-employee policy, not FOIA. The AG cannot review a non-FOIA process under § 10005.

2. Timeliness: moot. Hudson received a response, just allegedly late. Once a response is received, timeliness is moot under Flowers and other cases.

3. Personnel file exemption: applies generally, with two exceptions.
   - General principle: Section 10002(o)(1) exempts personnel files. A personnel file is "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." (Vanella v. Duran (2024).)
   - Internal communications and rationale records: These are personnel-action records. Exempt.
   - Board meeting minutes: Not subject to executive-session limits. The AG recommended the District review and produce any non-executive-session minutes responsive to the request.
   - Separation agreement: Not categorically private. Employment contracts and separation agreements typically memorialize public funds, which the public has interest in seeing. Unless the District can identify specific privacy concerns in the contract, a separation agreement should generally be released. The District did not make that showing.

The AG found a violation on items 3.b and 3.c (board minutes and separation agreement) and recommended the District review and supplement.

What this means for you

If you are a former public employee seeking your own separation records

You may have access through two paths:
1. FOIA process. Some records (the separation agreement, board meeting minutes) may be reachable through FOIA because they are not strictly personnel-file material.
2. Employee personnel file access. Most public employers have a separate process for current and former employees to view their own personnel file, with identification requirements. This is typically a more comprehensive access path and may include records that FOIA exempts.

If your employer requires in-person review with ID for personnel file access, that is generally a permissible employment policy. If you cannot visit, ask whether they will accept a notarized copy of your ID and mail records, or send a designated representative on your behalf. The personnel-file access process is governed by employer policy, not FOIA.

If you are seeking a separation agreement involving a public agency

Strong argument that you can get it. Employment contracts and separation agreements that involve expending public funds are not categorically private. The AG opinion confirms this: "we believe that a separation agreement between the District and an employee may not be private in its entirety, especially if it memorializes the expending of public funds."

The agency would need to identify specific privacy concerns in the contract (sensitive personal information, medical issues, settlement terms involving private parties) to justify withholding. Generic invocation of personnel file privacy is not enough.

If you are a school district or public employer

For separation-records requests:
1. Distinguish FOIA from personnel-file access. They are different processes with different rules. Make clear which is which when responding.
2. Don't deny categorically. The personnel file exemption is not a complete shield. Identify what records are within personnel file (internal evaluations, performance reviews, disciplinary materials) and what is not (employment contracts, board approval minutes, separation agreements memorializing public funds).
3. For separation agreements: Identify any specific privacy concerns and consider redaction rather than complete withholding.
4. For board minutes: Distinguish between open-session and executive-session minutes. Open-session minutes are public; executive-session minutes are exempt to the extent the executive session was lawful.

If you are negotiating a separation agreement with a public employer

Be aware that the agreement may become public through FOIA. If you want privacy for sensitive provisions, raise that during negotiation:
1. Request inclusion of a confidentiality provision (which is not binding on FOIA but may inform the privacy analysis).
2. Identify specific provisions you want protected (medical information, the underlying reason for separation, etc.).
3. Consider whether sensitive provisions need to be in the agreement at all, or whether they can be handled separately.

The agreement will likely be subject to FOIA disclosure for the public-funds aspects (severance amount, benefits continuation, return of property), but specific privacy interests may justify redaction.

If you are a taxpayer interested in public-sector separation agreements

This opinion supports your access. Public employees' compensation, including separation pay, is a public matter. AG opinion 05-IB13 (May 9, 2005) is the relevant precedent: "the employment contracts evidencing the regular salaries paid to [public employees], and their obligations and rights, are exactly the types of records to which the Legislature intended the public to have access."

To request a separation agreement: identify the employee or position, the approximate date of separation, and that you are seeking the agreement. The agency should produce it, with privacy redactions if specific concerns exist.

If you are an employment attorney

Two practical points. First, advise clients that public-sector separation agreements are subject to disclosure. The privacy expectations should be calibrated accordingly. Second, the personnel file exemption is narrower than many public employers think. Resist categorical denials by pushing for line-by-line analysis: which specific records are personnel-file material, and which are not.

If you are a school board member voting on a separation

Separation actions in open meetings will be in the minutes (public). Discussions in executive session may be exempt, but the underlying decision is recorded. Be transparent about the use of public funds in the agreement.

Background and statutory framework

29 Del. C. § 10002(o)(1) exempts personnel files: "[a]ny 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 to personal privacy."

The personnel file definition (Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024)): "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."

The content-based test (Vanella): "The determination of whether a record is properly considered part of a personnel file is resolved by its content rather than mere location, however. To that end, a public body may not restrict access to records otherwise disclosable under FOIA merely by placing them in a personnel file."

Employment contracts presumption (Del. Op. Att'y Gen. 05-IB13 (May 9, 2005)): "the employment contracts evidencing the regular salaries paid to [public employees], and their obligations and rights, are exactly the types of records to which the Legislature intended the public to have access. ... We do not believe that FOIA's personnel file exemption covers a contract between a public employee and a public body, unless the public body can point to something specific in the contract which would invade the employee's personal privacy."

29 Del. C. § 10004(f) governs board meeting minutes. Open-session minutes are public records; executive-session minutes are exempt to the extent the closed session was lawful.

29 Del. C. § 10005(e) limits the AG's authority to FOIA matters. Personnel-file access through employer policy (separate from FOIA) is not within the AG's review.

Common questions

What is in a personnel file?

Records used for traditional personnel actions: hiring decisions, performance evaluations, disciplinary records, promotion/demotion materials, transfer decisions, and termination decisions. Items typically NOT in a personnel file: employment contracts (separately maintained), board meeting minutes about employees (in the board's minute book), and separation agreements (often handled by HR with legal involvement, sometimes filed separately).

Why is the separation agreement different from internal communications about the separation?

The separation agreement is a contract that memorializes the use of public funds (severance, benefits, etc.). The public has a clear interest in seeing how public money is being spent. Internal communications discussing why the separation happened (performance issues, conduct concerns) are core personnel-file material because they relate to traditional personnel actions and reflect personal evaluation.

Can I get internal HR communications about my own separation?

Generally not through FOIA. Those communications are personnel-file material, exempt under § 10002(o)(1). The personnel-file access process maintained by the employer (separate from FOIA) may give you access, but FOIA does not.

What about the District's reasons for separating me?

Same answer. The reasons recorded in personnel-action documents (performance evaluations, disciplinary write-ups, exit-interview notes) are personnel-file material. They are exempt under FOIA. You may have access through the employer's personnel-file process or through litigation discovery if you sue.

Why does the District require in-person ID verification for personnel file access?

That is the District's employer-employee policy, not a FOIA matter. The policy serves to verify identity (so the wrong person doesn't access someone's personnel file) and to maintain physical control of the file. The District acknowledged this is outside FOIA, and the AG agreed.

If you have a legitimate reason to access your file remotely, ask the District directly. Many employers will accommodate.

Are board meeting minutes about employees public?

Open-session minutes are public. If the Board discussed your separation in open session and that discussion is reflected in the minutes, you can access it. If the Board discussed it in executive session under § 10004(b)(9) (personnel matters), the executive-session minutes are exempt, but any vote taken in open session would be in the open-session minutes.

What if my separation agreement has a confidentiality clause?

Confidentiality clauses between private parties do not bind public bodies vis-a-vis FOIA. A school district cannot agree by contract to override FOIA's disclosure rules. So even with a confidentiality clause, the agreement may be subject to FOIA disclosure (subject to the personnel file analysis above).

Why doesn't FOIA require email or mail delivery?

The statute requires "reasonable access to and reasonable facilities for the copying of public records," but does not specify delivery mode. The District chose in-person inspection at its office, which the AG accepted as compliant with FOIA. The AG opinion notes this is the policy choice for personnel file access, which is outside FOIA anyway.

What is "moot" mean in this context?

When the alleged FOIA violation has been remedied, the AG declines to make a violation finding because the harm has been cured. Here, Hudson received a response (just allegedly late), so the timeliness violation is moot. The AG cannot order retroactive timeliness; the only remedy is production, which has happened.

What happens next for Hudson?

Per the opinion, the District should review responsive board meeting minutes and the separation agreement, and produce them (or parts of them) to the extent appropriate under FOIA. Hudson should follow up with the District to get those records. If the District does not comply, Hudson can pursue judicial review under § 10005(d).

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10002(o)(1) (personnel file exemption); § 10003 (response procedures); § 10004(f) (board minutes); § 10005 (petition process); § 10005(c) (burden of proof); § 10005(e) (citizen right to petition).
• Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); Vanella v. Duran, 2024 WL 5201305 (Del. Super. Dec. 23, 2024); Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994).
• Prior AG opinions: 05-IB13 (May 9, 2005); 18-IB30 (Jun. 7, 2018); 17-IB35 (July 31, 2017).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/09/03/25-ib44-9-03-25-foia-opinion-letter-to-phillip-hudson-re-christina-school-district/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/09/Attorney-General-Opinion-No.-25-IB44.pdf

Original opinion text

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB44
September 3, 2025

VIA EMAIL
Phillip Hudson
[email protected]

RE: FOIA Petition Regarding the Christina School District

Dear Mr. Hudson:

We write regarding your correspondence alleging that the Christina School District violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("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 the District did not sufficiently support that the two below-referenced items in the request were exempt and not required to be made available through its FOIA request process. The remaining claims are not appropriate for consideration.

BACKGROUND

As a former employee of the Christina School District, you submitted a FOIA request to the District on June 13, 2025, seeking records related to your separation from employment, including a copy of the separation agreement; any board meeting minutes, internal memorandum, or correspondence discussing or approving the separation terms; any internal communications or records explaining why the District entered the agreement; and any entries or documentation in your personnel file related to this separation. On July 10, 2025, the District extended its time for a response by fourteen business days. The District thereafter responded to the request, stating that it located responsive records but due to the confidential nature of these documents, you would need to visit the District office in person to review them. The District requested you bring two forms of identification. You replied that due to schedule issues, you are unable to visit in person and as done with past requests, you would like the records mailed. The District declined, stating that they are unable to provide the documents unless you verify your identity in person, which is standard District practice. This Petition followed.

In the Petition, you claim that the District violated FOIA by: (1) requiring in-person verification of your identity with two forms of identification; (2) refusing to transmit records by email or mail, even with your agreement to accept redactions and pay reasonable costs; and (3) missing the extended response deadline of August 5, 2025.

The District, through its legal counsel, replied to your Petition ("Response"), enclosing the affidavit of the Chief Financial Officer attesting that the records have been retrieved and are available for inspection at the District's office, upon the verification of your identity. The District's counsel asserts that the requested records fall squarely within the definition of the personnel file exemption and disclosing your file would constitute an invasion of privacy. The District argues that its rationale for requiring identification is related to "this exact concern." The District maintains that the requested records are exempt and are not required to be made available under FOIA, and any right to inspect your personnel file does not arise out of the FOIA statute. Although the District believes your claims are moot for those reasons, the District states that the FOIA statute merely requires reasonable access to and reasonable facilities for the copying of responsive records and does not mandate that a public body transmit records by email or mail. Additionally, the District argues that its response was timely, because after an appropriate extension for legal advice and archived records, you were notified on July 28, 2025 that the records were available at the District office for inspection.

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.

This request was processed by the District as a FOIA request, but the restrictions placed on the availability of the records, namely, requiring two forms of identification and an in-person visit to the District office, pertain to the District's granting a former employee access to their personnel file, a process that, as the District acknowledges, is outside of the FOIA request process. This Office's statutory role is limited to determining violations of the FOIA statute. As the District's process for granting an employee access to their personnel file does not fall under the FOIA statute, we decline to consider the first two claims in the Petition, as they relate to personnel file records being released outside of the FOIA process. The Petition's third claim regarding the timeliness of the District's response is moot, as the District has provided you with a response to the request.

The only issue appropriate for this Office's review is whether the requested records are public records under FOIA. The personnel file exemption includes 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 to personal privacy." The personnel file 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." The determination of whether a record qualifies as part of a personnel file is based on the content, rather than mere location, of the records.

The District asserts that all the requested records are covered by the personnel file exemption and thus, are not required to be provided under FOIA. We agree, with the exception of any applicable Board meeting minutes and the separation agreement. If the District located any responsive Board meeting minutes, not subject to the limitations on the disclosure of executive session minutes, they are recommended to be made available to you.

In addition, employment contracts with a public body are not categorically considered private, especially if the expenditure of public funds is involved, unless the District can point to something specific in the contract which would invade the employee's personal privacy. Similarly, we believe that a separation agreement between the District and an employee may not be private in its entirety, especially if it memorializes the expending of public funds. In this case, the District failed to make a showing that the separation agreement, in its entirety, invades your personal privacy. The remainder of the request seeking documentation of the District's rationale for your separation of employment, including personnel file notations, by its nature involves traditional personnel actions, as defined under FOIA, which implicates your personal privacy.

For the responsive Board meeting minutes, if any, and the separation agreement, it is recommended that the District review and determine whether these records, or any parts thereof, are appropriately made available to you under FOIA, and if so, to supplement its response to your request, within the timeframes of Section 10003, by providing access to these records through its FOIA request process.

CONCLUSION

For the foregoing reasons, we determine that the District did not sufficiently support that two items in the request were exempt and not required to be made available through its FOIA request process. A response specific to those two items is recommended. The remaining claims are not appropriate for consideration.

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

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

cc: Alpa V. Bhatia, Attorney for the Christina School District