Civil Division - New Castle County July 29, 1997 VIA HAND-DELIVERY Richard G. Elliott, Jr., Esquire Richards, Layton & Finger One Rodney Square P.O. Box 551 Wilmington, DE 19899 Re: Freedom of Information Act Complaint Against Red Clay Consolidated School District Board of Education Dear Mr. Elliott: Pursuant to 29 Del. C. Section 10005(e), the Department of Justice makes the following written determination whether a violation of the Freedom of Information Act ("FOIA") has occurred. On June 18, 1997, we received your letter of complaint. By letter dated June 20, 1997, we asked the Red Clay Consolidated School District Board of Education ("Red Clay") to respond within ten days to your allegations that Red Clay violated the public records and open meeting requirements of FOIA. We granted Red Clay's request for an extension of time to respond to your complaint until July 11, 1997. We then provided you with a further opportunity to respond in writing, and received your supplemental response on July 14, 1997. On July 15, 1997, we asked Red Clay's counsel to provide us with a copy of the minutes of the executive session on June 2, 1997 for our in camera review. We received the minutes on July 16, 1997. Based on the complaint (and documents attached), Red Clay's response, your reply, and our review of the minutes, we make the following written determination. A. Public Records 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). Section 10003(a) further provides that all citizens shall have "[r]easonable access to and facilities for copying of these records . . . If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available." The complaint alleges three violations of the public records law: (1) Red Clay did not provide a copy of an amended contract with the Montessori School at a public meeting on June 2, 1997; (2) Red Clay required The News Journal to make a written request to Red Clay's counsel before providing access to other public records requested on June 3, 1997; and (3) Red Clay withheld the minutes of the executive session held on June 2, 1997. Since the
third issue may turn on the interpretation and application of the open meeting law, we will address it subsequent to our discussion of whether Red Clay went into executive session for a purpose authorized by statute. 1. The Montessori School Contract The complaint states that at 4:30 p.m. at the June 2, 1997 meeting "a reporter for the News Journal requested access to an amended contract between the Red Clay Consolidated School District and the Montessori Community School, Inc. relative to a charter application that was being voted on by the Board at that meeting . . . ." The complaint first states that "[s]uch access was denied," but then states that "access was provided after a vote on the contract had been taken." The News Journal contends that the document "should have been provided before the vote." In its response, Red Clay states that the contract "was promptly provided to its reporter at the very meeting at which access was sought . . . ." Red Clay also contends that the document requested "was in 'active use' until the voting on it was complete, within the meaning of Section 10003(a)." We do not have to decide whether the document was in "active use" for purposes of FOIA since we find that Red Clay did not deny The News Journal access to this public record. FOIA requires that citizens have "reasonable access" to inspect and copy public records, but does not define "reasonable access." In construing that term, this Office has made previous reference to the federal Freedom of Information Act, 5 U.S.C. Sections 550-559, which generally requires a ten-day response to requests for public records. See 5 U.S.C. Section 552(a)(6)(A)(i). The federal law only requires the agency to "respond" to the request, that is, to make a decision whether it will or will not comply (as opposed to actually producing the documents requested). If there are "unusual circumstances," the federal agency may have longer to respond. Id. Section 552(a)(6)(B). A public body in Delaware "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Att'y Gen. Op., 91-IO03 (Feb. 1, 1991). This time may be extended for good reason, for example: "(1) When there is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) When there is a need to search for, collect, and examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) When there is a need for consultation, which shall be conducted with all practicable speed, with another agency or with agency counsel." Id. The touchstone to the public access analysis is the modifier "reasonable," which is tested under the circumstances of the particular case. See Att'y Gen. Op. 94-IO30 (Oct. 19, 1994) (unreasonable for the town not to comply with a request for public records for ten weeks). The News Journal admits that it received a copy of the contract it requested at the very meeting during which it requested the document. We do not construe the "reasonable access" requirement of FOIA to mean that a public body must provide access, on short-notice demand, at any time or place. The FOIA Declaration of Policy states that citizens should have "easy access" to public records. 29 Del. C. Section 10001. It does not say that they must have instantaneous access. Of course, there may be circumstances where a public body should give priority to requests for public records. "Courts have been sensitive to the context of FOIA requests and to the plaintiff's need for the information, and they have expected that the administrative procedures would take these needs into account." Mayock v. INS, 714 F. Supp. 1558, 1567 (N.D. Cal. 1989) (public records needed to defend against imminent deportation). The News Journal apparently wanted to see a copy of the amended contract to better observe the discussion at the meeting on June 2. But we do not find that the circumstances were so compelling as to require Red Clay to provide a copy of the contract upon first demand at an open public meeting, especially since Red Clay provided The News Journal with a copy of the contract before the meeting concluded. 2. Minutes of School Board Meetings On June 3, 1997, a reporter for The News Journal made a telephone request for minutes of certain meetings of the Red Clay School Board. The attorney for the School Board asked that the request be put in writing "so that there would be no mistake as to the documents requested" and "to avoid any misunderstanding that could occur." The News Journal takes the position that FOIA does not require requests for public records to be made in writing. FOIA is silent as to whether a public body can require a citizen to make a written request to inspect and copy public records before honoring the request. It is within the discretion of the public body to honor a verbal request for public documents. See Att'y Gen. Op. 96-IB13 (May 6, 1996) ("a public agency can certainly respond to a request by telephone"). But if a public body chooses to require that the request be made in writing, or that such writing be directed to its counsel, then that, in itself, does not amount to a violation of the public records law. In Brent v. Paquette, N.H. Supr., 567 A.2d 976 (1989), a citizen sued alleging that he was denied access to public records by the school superintendent, who required that he make an appointment first. The citizen argued that the New Hampshire law guaranteed him the right to inspect public records during regular business hours at the premises of the public body, and therefore he had a right to see any public document upon demand. The New Hampshire Supreme Court did not agree. "[A]n appointment does not prevent a citizen from inspecting public records," but only assures "the 'smooth and efficient functioning of the bureaucracy in providing public information."' 567 A.2d at 980. "While . . . citizens are entitled to inspect public records during business hours and at business offices, [the statute] does not indicate that citizens have the unfettered right to review the records in any quantity and wherever kept immediately upon demand." 567 A.2d at 981. The court also rejected the citizen's argument that any restriction on access to public records was contrary to the purpose of the statute and the public's right to know.
[R]equiring citizens to arrange a mutually convenient time to examine public records perpetuates the underlying purpose of the statute . . . 'to ensure . . . the greatest possible public access to the actions, discussions, and records of all public bodies . . . .' [C]alling ahead to arrange a time to review particular documents assures citizens that they will be able to examine the records soon after they arrive at the office, and that they will not be told either to wait an indeterminate amount of time for someone to help them, or to come back later when the office is not so busy. Likewise, our public offices will be able to function more smoothly and efficiently if the keepers of the records can plan their days around pre-arranged appointments, and not be forced to interrupt their work whenever a citizen "drops by" to inspect a public record.
567 A.2d at 981-82. Requiring a written request does not burden a citizen's right of reasonable access to public records any more than the appointment requirement in Brent. Further, there is little, if any, additional burden in requiring that the request be addressed to the public body's counsel, as opposed to the custodian of the records. The News Journal complains that this can result in unreasonable delay since Red Clay's counsel is in Philadelphia. In this age of facsimile and computers and law firms with multiple branch offices, we think this concern is de minimis. In any event, referring the records request to counsel did not result in unreasonable access since the response from Red Clay's counsel was made within 48 hours of The News Journal's request. . B. The Executive Session 1. Purpose FOIA requires that "[e]very meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section." 29 Del. C. Section 10004(a). Subsection (b) authorizes a public body to go into executive session for nine purposes. One of those purposes is for: "Strategy 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; . . . ." 29 Del. C. Section 10004(b)(4). Red Clay states that it went into executive session to meet with its attorneys to discuss a possible lawsuit over the Montessori School charter. According to Red Clay, "the Board was threatened with litigation by opponents of the [sic] Phil Clothier [sic], State Legislator, and others, who vowed to sue Red Clay if it approved a pending Montessori charter school application. The Board therefore called the executive session to evaluate the potential litigation and to determine Red Clay's alternatives to avoid litigation on that issue. Legal counsel to the Board was present, and without revealing the advice rendered, which is attorney-client privileged, Red Clay was concerned what its alternatives would be in approving the application, disapproving the application, or offering a modification which potentially could avoid litigation. Alternatively, Red Clay was interested in the soundness of its litigation position." A public body bears the "burden of proving that its action was justified when the propriety of an executive session is challenged." Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., 1995 WL 733401, at p. 4 (Dec. 5, 1995) (Balick, V.C.) (citing 29 Del. C. Section 10005). Unlike the Chancery Court in Common Cause, we do not have the benefit of depositions of School Board members as to what was discussed at the executive session on June 2, 1997. We have reviewed the one-page minutes of the executive session, which indicate that two attorneys for Red Clay were present at the executive session and that legal matters were discussed. Counsel for Red Clay has confirmed that the executive session on June 2, 1997 was not tape-recorded. In Common Cause, Vice Chancellor Balick observed that "[t]here is a practical reason" to keep more detailed minutes of executive session in the event there is litigation and the purpose of the executive session is challenged. 1995 WL 733401, at p. 4. But FOIA "neither says that the subjects discussed must be summarized nor attempts to define how specific such a summary should be. Although plaintiffs are undoubtedly correct that a more detailed contemporaneous record of the subjects discussed would make it easier to confirm that a public body has kept within prescribed limits on executive sessions, I cannot conclude that there is a clearly implied statutory requirement to summarize the subjects discussed with any degree of specificity in the minutes of executive sessions." 1995 WL 733401, at p. 4. In Common Cause, there was no dispute that litigation (the federal desegregation lawsuit) was pending. The issue was whether the subjects discussed in executive session would have an adverse effect on Red Clay's position in that litigation. FOIA, however, also authorizes a public body to go into executive session to receive legal advice from an attorney with respect to "potential" litigation, if "an open meeting would have an adverse effect on the bargaining or litigation position of the public body; . . . ." 29 Del. C. Section 10004(b)(4). In Common Cause, the Chancery Court found that an open meeting would have an adverse effect on the Board's litigation position in the desegregation case. "At the time of the April meeting, Red Clay was seeking the State Board's support of the open enrollment plan and was trying to meet the deadline for filing a motion to modify the federal court's decree. . . The public was intensely interested and deeply divided on open enrollment and unitary status. The issues in question required the Board to consider proposed changes and arguable problems in the plan. The Board could reasonably conclude that open discussion of those issues would have an adverse effect on the Board's pending motion seeking court approval of the plan." 1995 WL 733401, at p. 2. The Montessori School charter was the subject of extensive coverage in the local media. See, e.g., The News Journal, May 19, 1997 ("Red Clay Eyes Montessori"); May 21, 1997 ("Montessori Approval Looks Likely"); May 22, 1997 ("Red Clay Debates Montessori School"); May 23, 1997 ("Montessori Approval Raises Money Issues"). The article that appeared on May 23 noted that critics "question whether tuition-based preschool programs are legal in a charter school," and that Representative Philip D. Cloutier (R-Heatherbrooke) was planning "to ask the state attorney general's office to rule on the issue." In a News Journal article on June 2, 1997, the headline reported that the Montessori charter "Plan May Break Delaware Law." Representative Cloutier was quoted: "Red Clay is trying to find some means to accomplish what the statute says they can't do . . . They are desperately trying to find a way to salvage a good idea, but it just happens to be illegal." At the public meeting on June 2, there was "overwhelming opposition from about 50 community residents and staffers who shouted and railed against the proposal." The News Journal, June 3, 1997. The public was obviously interested and divided on the issue of a charter school. Critics claimed that the proposal would violate state law by charging tuition. Under these circumstances, we find that Red Clay could reasonably conclude that open discussion with its attorneys of the legal issues surrounding the charter application would have an adverse effect on the Board's position in potential litigation challenging the legality of the charter school. 2. Minutes of Executive Session FOIA exempts from disclosure "minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section . . . ." 29 Del. C. Section 10004(f). In Chemical Industry Council, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., 1994 WL 274295 (May 19, 1994) (Jacobs, V.C.), the Board invoked this exemption to withhold tape recordings of an executive session in which the Board discussed (though not exclusively) potential litigation. Vice Chancellor Jacobs emphasized that this exemption applied only "'so long as public disclosure would defeat the lawful purpose for the executive session'" (quoting Section 10004(f)), and ordered the Board to produce the tapes after redacting "those portions that specifically concern the Board's litigation strategies." 1994 WL 274295, at p. 13. In reviewing the minutes of the executive session on June 2, 1997, we do not find that disclosure "would defeat the lawful purpose for the executive session" by revealing any details about Red Clay's litigation strategy or the advice received from counsel. Accordingly, we direct Red Clay to produce to The News Journal the minutes of that executive session. The News Journal also contends that on other occasions Red Clay has "made improper use of the litigation exception to hold executive sessions (particularly as to charter school applications), when no legitimate threat of litigation exists . . . ." Attached to the complaint are copies of the notices for meetings on April 16, May 19, and May 21, 1997, which state that the Board will hold an executive session concerning "charter school applications" or "the Montessori charter application." Again, we are limited in our ability to know what was actually discussed at those meetings bcause of the lack of specificity in the minutes. Controversy surrounding charter schools, however, has continued since the General Assembly enacted the Charter School Act of 1995. See 1995 Del. Laws ch. 179 (approved July 10, 1995). This controversy was particularly intense in the months leading up to the approval of the Montessori School charter application by Red Clay on May 22, 1997. Accordingly, we find that Red Clay reasonably invoked the potential litigation exception for executive session at the April and May meetings. C. Procedure For Going Into Executive Session The public notice of the June 2, 1997 meeting of the Red Clay School Board stated that the Board "will meet on Monday, June 2, 1997 at 3:00 p.m. This meeting, the executive session, will be held at the administrative offices building, 1400 Washington Street, Wilmington. The public meeting will take place at Warner Elementary School, 820 West 19th Street, at approximately 4:30 p.m." The News Journal contends that "[n]o public notice was given that the Board intended to convene a public meeting on June 2, 1997, for the purpose of conducting a vote on whether to hold an executive session, as is required under 29 Del. C. Sections 10004(c) and (e)(2). . . . As such, the Notice was drafted in such a way as to discourage or thwart public attendance at the Board's meeting at 3:00 p.m. on June 2, 1997. The Notice further reflects the fact that the Board had pre-determined its intention to hold an executive session at 3:00 p.m. on June 2, 1997, thereby obviating any utility or significance of holding a public meeting and vote on the subject." Red Clay responds that a quorum of the School Board "convened in public session at three p.m. and immediately moved to go into an executive session. Once the motion was made and seconded and a vote taken, the Board went into executive session, where it remained until the conclusion of that meeting." As for the notice of executive session, Red Clay explains that "[t]he Board's notices of meetings are worded so as to put the public on notice that the Board intends to hold an executive session immediately after the public meeting is convened, so that the public does not wait outside the doors for an hour, hour and one-half, or two hours, while the executive session is completed. The Board's notice is required to, and did, notify the public of its intent to go into an executive session." Section 10004(e)(2) of FOIA requires all public bodies to give "public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include . . . the dates, times and places of such meetings; . . . ." Section 10004(c) provides that "[t]he vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes." The News Journal questions whether Red Clay gave adequate notice of the executive session since the notice suggested that the public was only invited to a later meeting of the School Board at a different location. But there is no evidence that any member of the public was denied the right to attend the meeting at 3:00 p.m. to watch the Board vote in public to go into executive session. In Att'y Gen. Op. 94-IO08 (Feb. 25, 1994), a city council moved to "adjourn" a public meeting in order to go into executive session. This Office found no violation of the open meeting law because nothing in the complaint "indicates either explicitly or implicitly that members of the public were somehow misled by this order of business into leaving the regular meeting so that the Council could somehow meet secretly to conduct its business." Similarly, we find nothing in The News Journal's complaint to show that citizens did not attend the start of the 3:00 p.m. meeting because they were misled by the public notice posted for the meeting. Nevertheless, we see some potential for public confusion under the format currently used by Red Clay for giving notice of its meetings, particularly in holding the executive session at a different location from the portion of the meeting open to the public. In the future, Red Clay should make it clear that a single public meeting open to the public will be held, and that during the meeting the Board may vote to go into executive session for a reason permitted by statute. Likewise, the notice should be clear as to the location of the meeting (or parts thereof) so that citizens can then choose whether to watch the public vote on going into executive session, or to arrive later at a different location after the executive session is concluded. The News Journal asks this Office "for an opinion that, as a result of the Board's above-detailed violations of FOIA, all actions taken by the Board (as set forth herein) are null and void." At most, the notices for the June 2 meeting might have technically violated the act. Under these circumstances, we think it inappropriate to declare invalid any action taken by Red Clay at the June 2 meeting. The remedy of invalidation "is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests." Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610, at p. 7 (Aug. 29, 1986) (Allen, C.). We do not believe that "substantial public rights" were impaired as a result of Red Clay's form of notice of the executive session on June 2, 1997. Following the executive session, there was considerable discussion and debate in the portion of the meeting open to the public, and the Board members unanimously agreed to locate the Montessori School at Shortlidge Elementary School. We find the circumstances similar to those in Beebe Medical Center v. Certificate of Need Appeals Board, Del. Super., 1995 WL 465318 (June 30, 1995) (Terry, J.), aff'd, Del. Supr., 1996 WL 69799 (Jan. 29, 1996), where the court held: "[T]his is a case where there was ample input from the applicants and the public; where there was a full public discussion; and where any violation of the FOIA was de minimis when taken in context with the entire process." 1995 WL 465318, at p. 6. In any event, the issue of whether to void an action taken in violation of the open meeting law is now moot. As reported in The News Journal on July 17, 1997, the contract proposal between the Montessori School and Red Clay "has fallen apart," and "'[t]he proposal approved by the [school] board is now null'" (quoting William E. Manning, President of the Red Clay School Board). The remedial action we have directed is prospective only, to address the potential for violating the notice requirements of FOIA that exists in the form of notice used by Red Clay for its meetings. Other public bodies that use the same or similar form of notice are cautioned that they could be subject to heightened scrutiny under FOIA if they do not clarify their notices along the lines recommended by this Office.
Conclusion For the foregoing reasons, we determine that Red Clay did not violate the public records requirements of FOIA by: (1) producing a copy of the amended contract with the Montessori School after the vote but at the public meeting on June 2, 1997; (2) requiring that a FOIA request made on June 3 by telephone be in writing and directed to Red Clay's counsel. We find that the minutes of the executive session on June 2 are not exempted from disclosure, and must be produced. We further find that Red Clay went into executive session for a purpose authorized by statute: to discuss potential litigation with its counsel when an open meeting would have an adverse effect on the Board's litigation position. The notices used by Red Clay to give the public notice of its meetings, however, are potentially misleading. Red Clay is directed to revise its form of notice in time for its next regularly scheduled meeting to make it clear that there is a single public meeting at a single location, during which meeting the Board may vote to hold an executive session as the first item on the agenda. In that way, the public can choose whether to attend the beginning of the meeting to watch the vote on going into executive session, to make sure that it complies with the requirements of FOIA. W. Michael Tupman Deputy Attorney General APPROVED: ____________________ Michael J. Rich State Solicitor cc: The Honorable M. Jane Brady, Attorney General Keith R. Brady, Chief Deputy Attorney General Katherine R. Witherspoon, Esquire Elizabeth A. Bacon, Opinion Administrator
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