August 22, 1997 New Castle County - Civil Division Mr. David Burke 66 West Fairfield Drive Dover, DE 19910 RE: Freedom of Information Act Complaint Against Caesar Rodney School District 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 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. 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 cc: The Honorable M. Jane Brady, Attorney General Keith R. Brady, Chief Deputy Attorney General Dr. William J. Bach, Superintendent Elizabeth A. Bacon, Opinion Coordinator
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