When a Delaware town's executive session covers both litigation strategy and personnel matters, can the AG decide whether the closed-session use was proper, even when an employee asks for an open-session discussion?
Plain-English summary
Kelli Nuwer petitioned the AG with two FOIA claims against the Town of Greenwood:
- No current FOIA coordinator listed on the Town website.
- The August 13, 2025 Town Council executive session was held for an improper purpose, because Nuwer believed it concerned an employee who had stated that any discussions of their performance could be done in open session.
The Town responded with the Mayor's affidavit and an affidavit from employment counsel. On the coordinator listing, the Town said: an interim FOIA coordinator served from August 14 to September 1, 2025; a permanent coordinator was appointed September 2; the website and the AG's office were notified of the change on September 8 (six days later, well within the 20-business-day statutory window).
On the executive session, the Town said: the meeting agenda noticed two exceptions, § 10004(b)(4) (litigation strategy) and § 10004(b)(9) (personnel matters). Employment counsel attested that real and tangible threat of litigation existed about the personnel matter, and publishing the discussion would adversely affect the Town's litigation position. The Town declined to comment on whether the specific employee asked for open session, citing personnel confidentiality.
The AG split the analysis:
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Coordinator listing: no violation. The Town carried its burden under § 10003(g)(1), which gives 20 business days to update the website and notify the AG's office after a coordinator change. Six days was well within that.
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Executive session: undecidable on this record. Section 10004(b)(9) lets a public body close personnel discussions about names, competency, and abilities, unless the employee requests an open meeting. Section 10004(b)(4) lets the body close strategy sessions with attorneys about pending or potential litigation when an open meeting would adversely affect the litigation position. The AG accepted that employment counsel's affidavit about the litigation prong was facially plausible, but found it did not adequately describe specific facts to confirm the exception applied. Combined with conflicting factual claims about whether the employee asked for an open session, the record was inadequate.
The AG explained that under prior opinions and Section 10005 generally, the AG does not act as an independent fact-finder, does not conduct in-camera reviews, and cannot resolve disputed facts on a record like this. The petitioner was directed to consider judicial action under § 10005(d) for further review.
What this means for you
If you are a Delaware public employee facing a personnel discussion
You have a right under § 10004(b)(9) to require that the discussion happen in open session, not in executive session. The right is yours, not the public body's. To exercise it:
- Make the request in writing. Email the Mayor, the Town Council Chair, or the FOIA coordinator before the meeting, stating that you request the discussion of your performance to occur in open session.
- Reference the statute. Citing 29 Del. C. § 10004(b)(9) makes the request unmistakably under FOIA.
- Keep proof. Save the email and any acknowledgment.
If the public body holds the discussion in executive session despite your request, you have a § 10005 petition right. But as this opinion shows, the petition route may struggle if there are factual disputes the AG cannot resolve. Consider also: a written request that creates a clear record helps in any subsequent judicial action.
If the executive session also involves potential litigation
This is the wrinkle. Section 10004(b)(4) lets the body close litigation-strategy discussions even if the employee wants the personnel discussion open. The two exceptions can overlap, and where they do, the litigation-strategy exception may swallow the personnel open-session right. Counsel will argue (as Greenwood's counsel did here) that the personnel matter is "inextricably intertwined" with potential litigation.
For employees, this means: the open-session request is most powerful when there is no real litigation threat. If you genuinely have no plans to sue, make that clear in your written request. State that you do not consent to litigation-strategy framing of the discussion.
If you are a municipal attorney advising on executive sessions
Two practical points. First, when the personnel-matters exception is invoked alongside the litigation-strategy exception, document the basis for both. Counsel's affidavit needs to identify:
1. The objective signs of foreseeable litigation (written demands, retained counsel, prior litigation, etc.).
2. Why open-session discussion would adversely affect litigation strategy.
3. The connection between the personnel matter and the litigation.
Second, the AG cannot resolve factual disputes about whether the employee requested an open session. If you have a record (counsel attests no such request was made), present that under oath. If you do not, expect the AG to defer the question to judicial review.
If you are a citizen petitioning over an executive session
Build the factual record before filing. Specifically:
1. Document what the employee did or said about wanting open session (if relevant).
2. Document the agenda's invocation of the executive session exception.
3. Note any public statements about the session that contradict the executive session claim.
4. If possible, identify witnesses who can attest to relevant facts.
The AG's limited factfinding role means a thin petition will not produce a violation finding. Expect to either present a clean record or take the matter to Chancery Court.
If you are responsible for FOIA coordinator updates at your municipality
Section 10003(g)(1) gives 20 business days to update the website and notify the AG after a coordinator change. The Town here made the update in 6 business days and that was held compliant. Best practice: update the same day or week. The 20-day window is a ceiling, not a target.
If you are a town councilmember considering executive session for a personnel matter
Before voting to close the meeting, confirm:
1. The agenda properly noticed the executive session and identified the relevant exception.
2. You have a real, documented basis for any litigation-strategy invocation.
3. The employee's open-session preference (if any) has been considered.
4. The discussion in executive session will be limited to the noticed topic.
Going beyond the noticed topic in executive session can itself be a FOIA violation.
Background and statutory framework
29 Del. C. § 10003(g)(1) requires public bodies to identify their FOIA coordinator on the body's website and to provide name and contact information to the AG. Updates must be made within 20 business days of any change.
29 Del. C. § 10004 sets the open-meeting requirements. Section 10004(b) lists nine permitted topics for executive sessions. The two relevant here are:
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§ 10004(b)(4): Strategy sessions, including legal advice or opinion from counsel, with respect to collective bargaining or pending or potential litigation, when an open meeting would adversely affect the bargaining or litigation position.
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§ 10004(b)(9): Personnel matters in which the names, competency, and abilities of individual employees are discussed, unless the employee requests open session.
The "potential litigation" prong of § 10004(b)(4) uses the same test as the FOIA records exemption: ACLU v. Danberg's two prongs (foreseeable litigation + nexus) plus objective signs.
Section 10005(c) puts the burden on the public body. Judicial Watch v. Univ. of Del. requires sworn affidavit support in some cases. The AG opinions consistently note that the AG "does not operate as an independent factfinding body" and does not do in-camera review of records.
The AG opinions cited at the end of the Greenwood opinion (22-IB15, 20-IB18, 18-IB05, 15-IB06) explain the boundary: when the record presents competing irreconcilable facts, the AG defers to judicial review.
Common questions
What is § 10004(b)(9), exactly?
It is the personnel-matters executive session exception. It allows public bodies to close meetings to discuss "the competency or performance of an officer or employee" so long as the employee does not request an open meeting. The right to request open session belongs to the employee.
What does it mean to "request" an open meeting?
The statute does not specify a form. A clear written request to the public body, before the meeting, citing § 10004(b)(9), is the safest practice. Verbal requests at the meeting itself can also work, but create a record dispute. The Greenwood opinion shows what happens when the parties disagree about whether a request was made: the AG cannot resolve it.
Can the public body close the personnel discussion even if I ask for open session?
Possibly, if the litigation-strategy exception (§ 10004(b)(4)) also applies. The opinion notes that the strategy exception requires (a) foreseeable litigation, (b) adverse effect on litigation position from open discussion, and (c) the legal-advice-or-strategy nature of the discussion. Public bodies often layer the two exceptions when an employee wants open session but litigation is genuinely foreseeable.
What is the standard for "potential litigation" in executive session?
Same test as for FOIA records: the litigation must be likely or reasonably foreseeable based on objective signs (written demand letter, retained counsel, prior or ongoing litigation, etc.), per ACLU v. Danberg. A "realistic and tangible threat" based on "objective factors" is the language. Speculation alone is not enough.
Why can't the AG decide my factual dispute?
The AG opinion process is review of a record, not investigation. The petitioner submits the petition, the public body responds (often with an affidavit), and the AG decides on what is on paper. If the parties' affidavits irreconcilably contradict each other, or if the AG would need to look at the executive session minutes to know what was discussed, the AG defers to judicial review. The Court can hold an evidentiary hearing or in camera review the records; the AG cannot.
Can I get the executive session minutes?
Generally no. Executive session minutes are exempt from disclosure to the extent the meeting was properly closed. If the executive session itself was unlawfully closed, the cure is open-session disclosure of the discussion (or at least the contemporaneous public release of the minutes). But that determination requires resolution of the closed-session-propriety question, which is what the petition was about.
What is judicial review under § 10005(d)?
You can sue in Chancery Court to seek a declaration that FOIA was violated and an order requiring compliance. The AG opinion is persuasive evidence but not binding. The Court has broader factfinding authority and can do in-camera review. The court process is more time-consuming and expensive than the AG petition route.
What happens if litigation actually arises later?
If the personnel matter ultimately leads to litigation, the agency's litigation position is what was protected under § 10004(b)(4). At that point, the discovery process governs document production. Materials from the executive session may or may not be discoverable depending on privilege rules. The litigation, if it happens, may also clarify whether the executive session was justified.
Can a public body always invoke litigation strategy to close a personnel meeting?
No. The strategy exception requires a real, documented basis. A bare assertion of "we might be sued someday" is not enough. The AG opinion notes that counsel's affidavit here "appear[ed] likely to satisfy the standard" but did not adequately describe the specific facts. So the bar is real even when affidavit support is provided.
Does the AG opinion mean Greenwood did anything wrong?
The AG made no finding of violation on the executive session. The AG made no finding of compliance either. The question was deferred to potential judicial review because the record was inadequate. So the executive session question is unresolved. The FOIA coordinator question was resolved in the Town's favor.
Citations
- Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10003(g)(1) (FOIA coordinator listing); § 10004 (open meetings); § 10004(b)(4) (litigation strategy executive session); § 10004(b)(9) (personnel matters executive session); § 10005 (petition process); § 10005(c) (burden of proof).
- Cases: Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021); ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007).
- Prior AG opinions: 22-IB15 (Apr. 26, 2022); 20-IB18 (May 22, 2020); 18-IB05 (Jan. 30, 2018); 15-IB06 (Aug. 19, 2015); 02-IB17 (Aug. 6, 2002).
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/10/03/25-ib48-10-03-25-foia-opinion-letter-to-kelli-nuwer-re-town-of-greenwood/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/10/Attorney-General-Opinion-No.-25-IB48.pdf
Original opinion text
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 25-IB48
October 3, 2025
VIA EMAIL
Kelli Nuwer
[email protected]
RE: FOIA Petition Regarding the Town of Greenwood
Dear Ms. Nuwer:
We write in response to your correspondence, alleging that the Town of Greenwood 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 Town did not violate FOIA by failing to have its new FOIA coordinator on its website at the time of the Petition. The remaining claim regarding the propriety of the executive session discussions is not appropriate for consideration.
BACKGROUND
This Petition alleges that the Town did not have a current FOIA coordinator on its website, as required by FOIA. You also assert that at the August 13, 2025 Town Council meeting, an executive session to discuss litigation strategy and personnel matters was held for an improper purpose, because you believe the session concerned an employee who had stated that any discussions of their performance could be done in open session.
The Town, through its legal counsel, replied to this Petition ("Response") on September 15, 2025 and enclosed an affidavit of its Mayor. The Town argues that it has not violated the provisions of FOIA, because the Town has a new FOIA coordinator and updated its website and this Office within twenty working days, as required. The Town alleges that it had an interim FOIA coordinator from August 14, 2025 to September 1, 2025 and appointed a new FOIA coordinator on September 2, 2025. The Town states it revised its website to add the new FOIA coordinator and notified this Office on September 8, 2025 of the change.
The Town states that you seek access to information that is not public, and the Town declines to address the veracity of the allegations you make pertaining to ongoing personnel matters. The Town asserts that its executive session was noticed for two purposes, specifically the exceptions for litigation strategy and personnel discussions as delineated in 29 Del. C. § 10004(b)(4) and (9). The Town contends that when an employee's request for a public discussion impedes on the Town's right to hold an executive session under Section 10004(b)(4), it is permissible for the Town to hold those discussions in executive session. The Town's employment counsel attests that the executive session was held to discuss personnel matters involving the names, competency, and abilities of individual employees and to seek and receive legal advice and opinion from this counsel related to strategies and considerations in response to potential litigation. Counsel further attests that a real and tangible threat of litigation exists regarding the personnel matter discussed, and publishing such information without in camera protections would adversely affect the Town's interests in the potential litigation.
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 a decision to meet in executive session or any failure to comply with [FOIA]." In certain circumstances, a sworn affidavit may be required to meet that burden.
In this case, the Petition alleges that the Town did not have its current FOIA coordinator on its website, as required by FOIA. The Town's Response, submitted under oath, demonstrates that the Town had a designated FOIA coordinator at the time of this Petition, and this FOIA coordinator's information was updated on the website on September 8, 2025, which is within twenty working days of the change, as required by the statute. We find no violation in this regard.
The Petition also alleges that the executive session of the August 13, 2025 Town Council meeting was held for an improper purpose. FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public. Public bodies, with proper notice on the meeting agenda, may hold an executive session to discuss one of the nine topics that are outlined in the statute. The Town cited two separate exceptions in its meeting agenda. The first, Section 10004(b)(4), allows an executive session 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." The second, Section 10004(b)(9), relates to discussions about personnel matters in which the names and competencies of an employee are discussed may be held in executive session, if the employee does not request "that such a meeting be open."
This record does not contain a factual basis to determine whether these exceptions are applicable. Section 10004(b)(9) permits executive sessions for personnel matters about the names, competency and abilities of individual employees, unless the employee requests the meeting to be open. The Petition asserts that the employee requested that discussions of their performance take place in open session. However, the Town states it is unable to comment due to the confidentiality of ongoing personnel matters.
For an invocation of the strategy sessions for potential litigation exception to be appropriate under Section 10004(b)(4), potential litigation "must be likely or reasonably foreseeable," and disclosure of these discussions with the attorney must adversely affect the public body's litigation position. "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." The "potential litigation exception for executive session applies only when there is a 'realistic and tangible threat of litigation' based on 'objective factors.'" These signs may include factors such as a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." Other indications may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue.
To demonstrate that Section 10004(b)(4) is applicable, the Town provided the affidavit of its employment attorney who gave the legal advice at this executive session. The Town's employment counsel attests that this personnel matter is inextricably intertwined with the potential litigation; a real and tangible threat of litigation exists with respect to the personnel matter; and publicizing even a portion of these discussions would adversely affect the Town's interest in the potential litigation. While this affidavit presents circumstances that appear likely to satisfy the standard of Section 10004(b)(4), it does not adequately describe the facts to support this exception. As this Office does not operate as an independent factfinding body, nor does this petition process contemplate in camera reviews, this Office is unable to determine, based on this factual record, whether the Town's use of these exceptions was appropriate. You may wish to review Section 10005 to determine the options available to you through judicial action.
CONCLUSION
For the reasons set forth above, we conclude that the Town did not violate FOIA by failing to have its new FOIA coordinator on its website at the time of the Petition. The remaining claim regarding the propriety of the executive session discussions is 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: James P. Sharp, Town Solicitor