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:

1. No current FOIA coordinator listed on the Town website.
2. 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:

1. 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.

2. 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 it "does not operate as an independent factfinding body," that the petition process does not contemplate in camera reviews, and that on this record it could not determine whether the Town's use of the exceptions was appropriate. The opinion suggested the petitioner review Section 10005 for the options available through judicial action.

What this means for you

If you petitioned over a town's executive session

This opinion shows the limit of the AG petition process. The AG resolved the FOIA-coordinator claim on the affidavits (no violation), but it declined to decide whether the executive session was proper. The reason was the state of the record: the petition said the employee asked for an open-session discussion, the Town said it could not comment on the personnel matter, and the employment counsel's affidavit on the litigation prong, while it "appear[ed] likely to satisfy the standard," did not describe enough specific facts. Because the AG does not do independent factfinding or in camera review, it left the executive-session question for a court.

If you are a municipal body invoking these exceptions

The opinion confirms the Town carried its burden on the coordinator listing by updating its website and notifying the AG within the statutory window. On the executive session, it sets out what § 10004(b)(4) requires: potential litigation that is "likely or reasonably foreseeable" based on objective signs, plus an adverse effect on the body's litigation position from disclosure. The opinion did not find the Town's invocation either proper or improper; it found the affidavit did not adequately describe the supporting facts.

Background and statutory framework

The opinion addressed two FOIA requirements. First, public bodies must keep a current FOIA coordinator listed on their website and notify the AG of changes; the statute allows twenty working days to make that update. The Town updated its website on September 8, 2025, within twenty working days of the September 2 appointment, so the AG found no violation.

Second, 29 Del. C. § 10004 requires open meetings, subject to nine executive-session exceptions that must be noticed on the agenda. The Town cited two:

• § 10004(b)(4): strategy sessions, including legal advice from an attorney, regarding collective bargaining or pending or potential litigation, but only when an open meeting would adversely affect the body's bargaining or litigation position.

• § 10004(b)(9): personnel matters in which the names and competency of an employee are discussed, unless the employee requests that the meeting be open.

For the § 10004(b)(4) potential-litigation prong, the opinion stated that litigation must be "likely or reasonably foreseeable," judged by "objective signs" such as a written demand letter, prior or ongoing litigation, or retention of counsel with an expressed intent to sue, and that disclosure must adversely affect the body's litigation position. The opinion found it could not apply these standards to the facts because the record was inadequate and the AG does not conduct independent factfinding or in camera review. It pointed the petitioner to Section 10005 for judicial options.

Common questions

Did the Town of Greenwood violate FOIA?

On the FOIA coordinator listing, the AG found no violation: the Town updated its website and notified the AG within the twenty-working-day window. On the executive session, the AG made no finding either way, concluding the claim was "not appropriate for consideration" on this record.

Why couldn't the AG decide whether the executive session was proper?

The opinion explains that the AG "does not operate as an independent factfinding body" and that the petition process does not allow in camera review. The petition and the Town's response presented competing accounts (including whether the employee asked for an open session), and the litigation-strategy affidavit did not describe enough specific facts, so the AG could not resolve it.

What can the petitioner do next?

The opinion points to Section 10005, which sets out the options for judicial action. A court, unlike the AG in this process, can take evidence and review the disputed material.

Citations

• Statutes: 29 Del. C. §§ 10001-10008 (FOIA); § 10004(b)(4) (litigation strategy executive session); § 10004(b)(9) (personnel matters executive session); § 10005 (petition and judicial-action process).

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