Is a school's National Honor Society chapter subject to Delaware's public records law just because the school partly funds it?

Official title

97-IB15 RE: Freedom of Information Act Complaint Against Caesar Rodney School District

Plain-English summary

A resident complained that the Caesar Rodney School District violated FOIA by refusing to let him inspect records of the local National Honor Society chapter. The district responded that FOIA simply doesn't apply to the chapter. The AG agreed. While the School District itself is unquestionably a public body, the National Honor Society chapter is a voluntary student organization governed by a national council under the National Association of Secondary School Principals, not an entity the district established, appointed, or controls. Its records are kept privately by the faculty sponsors, not in district files or student files, and working papers are typically discarded soon after induction under the organization's own recommended practice. The AG acknowledged the district paid faculty sponsor stipends (about $588 that year) and bought member awards (about $622), with the bulk of the chapter's money coming from student fundraising, but found that partial funding and use of school facilities didn't convert a self-directed voluntary group into a public body, drawing on a Montana Supreme Court decision reaching the identical conclusion about a National Honor Society chapter, and on federal and Connecticut cases finding that partial government funding alone doesn't make an otherwise independent organization subject to public-records law.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does partial school funding turn a student club into a public body subject to Delaware's records law?
A: No, according to this opinion. The AG found that stipends for faculty sponsors and money for awards did not transform a voluntary, nationally governed organization into a public body.

Q: Who actually controls a local National Honor Society chapter?
A: This opinion describes the chapter as governed by a national council under the National Association of Secondary School Principals, not by the local school district, and membership selection and participation are voluntary for both students and faculty.

Q: Where are the records of a chapter like this kept, and does the school district have access to them?
A: According to this opinion, the records are maintained privately by the faculty sponsor, not in the school district's own files or in individual student files, and the district does not have access to them.

Background and statutory framework

FOIA's general access rule in 29 Del. C. § 10003(a) reaches only records of a "public body," defined in § 10002(a) to include entities established, appointed, or empowered by the state or supported by public funds, and "public funds" are defined in § 10002(c). While the school district itself qualifies under New Castle County Vocational-Technical Education Association v. Board of Education of New Castle County Vocational-Technical School District, the AG found the National Honor Society chapter did not meet that definition because it is not established, appointed, or controlled by the district, applying the same reasoning as Becky v. Butte-Silver Bow School District and the partial-funding analysis in Irwin Memorial v. American National Red Cross and Connecticut Humane Society v. Freedom of Information Commission, consistent with FOIA's declared purpose in § 10001 of letting citizens monitor public officials executing public policy.

Citations and references

Statutes:

• 29 Del. C. § 10001, declares FOIA's purpose of letting citizens monitor public officials' decisions
• 29 Del. C. § 10002(a), defines "public body" to include entities established, appointed, or empowered by the state or supported by public funds
• 29 Del. C. § 10002(c), defines "public funds" as funds derived from the State or a political subdivision
• 29 Del. C. § 10003(a), requires public records be open to inspection and copying

Cases:

• New Castle County Vocational-Technical Education Association v. Board of Education of New Castle County Vocational-Technical School District, Del. Ch., 1978 WL 4637 (Sept. 25, 1978), confirming a school district is unquestionably a public body
• Becky v. Butte-Silver Bow School District, Mont. Supr., 906 P.2d 193 (1995), holding a state public records act did not apply to a local National Honor Society chapter
• Irwin Memorial v. American National Red Cross, 640 F.2d 1051 (D.C. Cir. 1981), holding minimal federal funding did not make the Red Cross a public agency under the federal FOIA
• Connecticut Humane Society v. Freedom of Information Commission, Conn. Super., 1990 WL 283966 (June 14, 1990), holding a state freedom of information law did not apply to the Humane Society

Source

• Landing page: https://attorneygeneral.delaware.gov/1997/08/22/97-ib15-re-freedom-of-information-act-complaint-against-caesar-rodney-school-district/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 97-IB15 (Del.A.G.), 1997 WL 606474

Office of the Attorney General

State of Delaware

Opinion No. 97 – IB15

August 22, 1997

RE: Freedom of Information Act Complaint Against Caesar Rodney School District

*1 Mr. David Burke

66 West Fairfield Drive

Dover, DE 19910

Dear Mr. Burke:

By letter dated June 30, 1997 (received by this Office on July 8, 1997), you alleged that the Caesar Rodney School District ("the School District") had violated the Delaware Freedom of Information Act, 29 Del. C. Sections 10001 – 10005 ("FOIA"), by not allowing you to inspect and copy public records.

By letter dated July 10, 1997, we asked the School District for their response to your complaint. By letter dated July 16, 1997, the School District responded claiming that FOIA does "not apply to the National Honor Society. Thus, the District does not believe that the rights of Mr. Burke have been violated."

By letter dated July 23, 1997, our Office posed additional questions to the School District regarding funding for the local chapter of the National Honor Society, and the location of and access to records of the local chapter. At the School District's request, we granted an extension of time until August 7, 1997 to respond to those questions.

By letter dated August 7, 1997, the School District confirmed the following information:

1. The local chapter of the National Honor Society does not receive any State funds. Like coaches and sponsors of other extra-curricular programs, faculty sponsors of the chapter receive stipends paid by local School District funds, estimated at $588 for the 1996-97 school year. In addition, the School District used $622 in local funds that year to purchase awards for members of the local chapter. All other monies used to support the local chapter were student-generated ($4,035.45 in the 1996-97 school year).

2. The records of the local chapter are maintained in the private files of the faculty sponsor either at school or at home. The records are not maintained in the School District Office, or in the files of individual students, and the School District does not have access to those records.

STATUTORY PROVISIONS

Section 10003(a) of FOIA provides: "All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body." 29 Del. C. Section 10003(a). A "public body" is defined to include any "association, group, panel, council or other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or part by any public funds; …." Id. Section 10002(a)

"Public funds" are defined as "those funds derived from the State or any political subdivision of the State." 29 Del. C. Section 10002(c).

OPINION

*2 The School District "is unquestionably a public body." New Castle County Vocational-Technical Education Association v. Board of Education of New Castle County Vocational-Technical School District, Del. Ch., 1978 WL 4637, at p. 2 (Sept. 25, 1978) (Brown, V.C.). The local chapter of the National Honor Society, however, is not a "body established by," "appointed by," or "otherwise empowered by" the School District. 29 Del. C. Section 10002(a). Under the Constitution of the National Honor Society, local chapters are part of a larger national organization under the sponsorship and supervision of the National Association of Secondary School Principals (NASSP). Control is vested in the National Council, which consists of seven members appointed by the Board of Directors of NASSP.

The local chapter of the National Honor Society at Caesar Rodney is a purely voluntary organization. It is not accountable to the School District, and it does not implement any School District policy. Any records generated by the local chapter are privately maintained by the faculty sponsors, and are not placed in a student's file. According to recommended National Honor Society practice, working papers are discarded shortly after induction.

In Becky v. Butte-Silver Bow School District, Mont. Supr., 906 P.2d 193 (1995), the Montana Supreme Court held that the state public records act did not apply to the local chapter of the National Honor Society. "The National Honor Society is an honorary organization sponsored by the National Association of Secondary School Principals to recognize outstanding high school students. It is a nonmandatory organization in which students are selected for membership by high school faculty who voluntarily evaluate the students based upon their academic achievements, leadership abilities, character, and service to their school." 906 P.2d at 194. Participation by both students and faculty "is voluntary," and records of the local chapter "are not maintained by the school." Id. Documents relating to the selection process "are generated by an independent nongovernmental organization for the purpose of determining membership in that organization. The documents do not record an act or acts of the School District. They do not contain information regarding school matters or the duties of School District Employees." 906 P.2d at 197. Accordingly, the records of the local chapter of the National Honor Society "contain no information which would make them 'documents of public bodies,'" as defined by Montana law.

Although there are some differences between the public records acts in Montana and Delaware, we find the similarities more compelling, especially in light of the overall purpose of the Delaware FOIA. Access to public records is intended to give citizens the opportunity "to monitor the decisions that are made by [public] officials in formulating and executing public policy." 29 Del. C. Section 10001. Faculty members, acting voluntarily as sponsors for the local chapter of the National Honor Society, are not acting in their capacity as public officials, nor are they engaged in executing public policy.

*3 While it is true that the School District provides some funding to the local chapter and allows it to use school facilities, we do not believe that those facts transform a self-directed and voluntary organization into a public body for purposes of FOIA. See Irwin Memorial v. American National Red Cross, 640 F.2d 1051 (D.C. Cir. 1981); (Red Cross was not a public agency for purposes of the federal FOIA, because it was not subject to substantial federal control and supervision and received minimal federal funding); Connecticut Humane Society v. Freedom of Information Commission, Conn. Super., 1990 WL 283966 (June 14, 1990) (state freedom of information law does not apply to the Humane Society).

Conclusion

For the foregoing reasons, we determine that the School District has not violated the public records requirements of FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor