September 25, 1996
Civil Division - New Castle County
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
James D. Griffin, Esquire
Griffin & Hackett, P.A.
Mellon Bank Building, #200
P.O. Box 612
Georgetown, DE 19947
Re: Freedom of Information Act Complaint dated May 30, 1996
Woodbridge School District
Dear Mr. Morozowich and Mr. Griffin:
This is the Attorney General's decision on the above referenced complaint filed pursuant to 29 Del. C. § 10005(e).
By letter dated May 30, 1996, Milton Morozowich alleges that the Woodbridge School District Board of Education (the "Board") violated the open meeting requirement of the Delaware Freedom of Information Act ("FOIA") by holding an executive session for the purpose of discussing applications for the Mary H. Bailey Educational Trust Fund Scholarship (the "Bailey Scholarship"). Mr. Morozowich also alleges that, following the executive session, he inquired
in open session whether "all applicants unequivocally met the scholarship criteria" and was advised that this matter could not be discussed in public(1).
The Board contends that it properly confined its discussion of the Bailey Scholarship applications to executive session because such discussion involved the review of confidential documents which are exempt from the definition of "public record" under FOIA. According to the Board's response, the Board is charged with reviewing applications and recommending qualified persons for the Bailey Scholarship to Mellon Bank, which serves as the Trustee of a trust created under the will of Mary H. Bailey for the purpose of funding the Bailey Scholarship.
In reviewing the applications, the Board follows certain guidelines established by the Board and the Trustee which set forth the application process, the form of application and selection criteria to be considered in recommending potential scholarship recipients. According to the guidelines, the selection criteria for the Bailey Scholarship include academic achievement and financial need. In order to establish that such criteria have been satisfied, applicants for the Bailey Scholarship are required to submit copies of their academic transcripts and their parents' or guardians' income tax returns with their applications. The Board contends that such documents
are not "public records" under FOIA, and therefore discussion of the Bailey Scholarship applications, which necessarily includes discussion of the content of such documents, should be carried on only in executive session.
For the reasons stated below, we find that the Board did not violate FOIA's open meeting requirement by confining its discussion of the Bailey Scholarship applications to executive session.
Pursuant to 29 Del. C. § 10004(b)(6), a public body may call for an executive session for the purpose of discussing the content of documents which are excluded from the definition of "public record" under FOIA. Under 29 Del. C. § 10002(d), documents excluded from the definition of "public record" include:
(1) 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;
(2) Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature; . . .
(6) Any records specifically exempted from public disclosure by statute or common law.
We find that the documents discussed by the Board in reviewing the Bailey Scholarship applications fall within the above exclusions to the definition of "public record." First, there can
be no doubt that a student's academic transcript constitutes part of a "pupil file, the disclosure of which would constitute an invasion of personal privacy." Section 10002(d)(1). See Bowie v. Evanston Community Consolidated School District, 538 N.E.2d 557 (Ill. Supr. 1989) (recognizing that public disclosure of individual student's test scores would violate personal privacy interests). See also Family Education Rights and Privacy Act, 20 U.S.C.A. §1232(g)(5)(A) (recognizing personal privacy interest in a student's academic records). In addition, a student's academic transcript is "exempted from public disclosure by statute." Section 10002(d)(6). Specifically, 14 Del. C. § 4111 prohibits disclosure to non-school personnel of personal records of pupils, including records regarding grades.
Second, the tax returns of the parents or guardians of the scholarship applicants undeniably constitute "financial information . . . of a privileged or confidential nature." Section 10002(d)(2). See Seaford Funding v. M & M Associates, Del. Ch., C.A.No. 1598-S, Steele, V.C. (April 9, 1996) (stating that tax returns "contain confidential and sensitive information to which the public has no right"). Like student transcripts, tax returns are also protected from public disclosure by statute. See 30 Del. C. §§ 368 and 1241 (prohibiting disclosure of tax returns by any State officer or employee).
Because the Board's discussion of Bailey Scholarship applications involves discussion of the content of the above mentioned documents, we conclude that the Board did not violate FOIA
in confining such discussion to executive session.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michele C. Gott
Deputy Attorney General
Michael J. Rich
cc: Elizabeth Bacon, Opinion Coordinator
1. The complaint also alleges that the Board wrongfully denied Mr. Morozowich the opportunity to participate as a Board member in all phases of the scholarship process on the ground that his daughters were scholarship applicants. This allegation does not implicate FOIA. It involves a dispute between the Board and one of its members as to the existence of a conflict of interest. This office has no jurisdiction to resolve such a dispute, and therefore this allegation will not be discussed further.
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