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Delaware Department of Justice
Attorney General
Kathy Jennings


95-IB34 Re: Freedom of Information Act Complaint 29 Del. C. § 10005(e)


Civil Division – New Castle County
October 24, 1995
Del. Op. Atty. Gen. 95-IB34 (Del.A.G.), 1995 WL 794507
(determining that school board complied with public records request made by concerned parent where board provided written explanations for teacher’s leave of absence and offered to meet with concerned parents and where the underlying documents were the teacher’s confidential personnel records)
Ms. Starlyn M. Adams
RD 1, Box 233-B
Greenwood, DE 19950
 

Re: Freedom of Information Act Complaint 29 Del. C. § 10005(e)

 
Dear Ms. Adams:
 
This is the decision on the above-referenced Complaint.
1
 
The operative facts are that on or about September 7, 1995 you filed a Freedom of Information Act Complaint (the “Complaint”) with the Attorney General pursuant to 29 Del. C. § 10005(e). You stated that you previously made a formal request in writing for certain records on August 30, 1995 with the Woodbridge School District (the “District”). Your Complaint with the Attorney General seeks, interalia, “to know in writing, what was done to correct the problems that others had last school year 1994-1995 with Mrs. Bansbach, a teacher employed by the District, other than a leave of absence for the remainder of the year.” (Complaint, ¶ 2). You stated that you are seeking reassurances that those problems would not continue in the future education of your daughter. (Complaint, ¶ 2). For corroboration, you enclosed a petition dated March 17, 1995 “by [those] concerned parents.” (Complaint, ¶ 3). You also enclosed a copy of a letter from Dr. Robert Sutton, Superintendent of the District, dated March 22, 1995, as well as various correspondence between school officials and parents of children in the Woodbridge School District. (Complaint, attachment No. 1). Also enclosed were letters written by certain students concerning the teacher in question regarding alleged improper treatment by the teacher. (Complaint, attachment No. 2, 3). Finally, you stated that you seek this information in your Complaint filed with the Attorney General because of “great concerns for the well being of [your] daughter.”
On or about September 13, 1995, the Attorney General served the Complaint on counsel for the District, James W. Griffin, Esquire.
Mr. Griffin responded on behalf of the District in writing on September 26, 1995. In the District’s response, it stated that your Complaint appears to be that the District did not provide you with a written response to your letter of August 30, 1995. In its answer to the Complaint, the District stated that the action taken by the District and Board of Education in March, 1995 was to have the teacher in question take a leave of absence for the remainder of the last school year. The District pointed out that there were documents attached to the Complaint indicating that you and other parents filed a petition and, in some cases, individual Complaint letters stating that they believed their children were treated unfairly by Mrs. Bansbach. The District stated that as soon as those Complaints were brought to the attention of the administration, Dr. Dan Kingery, the Assistant Superintendent, held a series of meetings. The District stated that it first met with the teacher; then with the teacher and her husband; and then with the local representatives of the teachers’ union and a representative of the Delaware State Education Association (with the teacher present).
Counsel for the District pointed out that the result of the meeting was that the District learned that the teacher had been under stress as a result of health and family matters. According to the District, the teacher and union representatives agreed that the best solution would be for Mrs. Bansbach to take a leave of absence for the remainder of the last school year and return to teaching in September, 1995. The District stated that you are incorrect if you believe that the District or the Board is withholding information. The District stated that the only action that was taken was the leave of absence by the teacher in question.
The District pointed out in its September 26, 1995 response that it believed the issues raised in your Complaint were fully resolved in March, 1995. However, the District pointed out on August 30, 1995 that you appeared at a meeting of the Woodbridge Board of Education along with a number of parents. As is indicated in your Complaint, you and other parents attempted to address the Board in open public session. Counsel stated that he personally reviewed the portion of the videotape of the Board where you and other parents attempted to address the Board. Counsel pointed out that the parents were told by Dr. Robert C. Sutton, Superintendent of the District, that the matter dealt with a personnel issue relating to a teacher and the Board was not at liberty to discuss the issue in open public session. See 29 Del. C. § 10002(d)(1). Following the March, 1995 Board meeting, counsel pointed out that a meeting would be scheduled with you and other interested parents which would provide opportunity to ask questions. A meeting was subsequently scheduled.
As a follow up to the August 30, 1995 Board meeting, the Board scheduled a meeting with parents and a number of public officials including Dr. Kingery. The District stated that it waited 30 minutes before deciding that you would not be in attendance for the scheduled meeting. According to the District, shortly after the Board departed to their jobs, a letter that was hand delivered to the parent group indicated that they would not attend the meeting based on advice from the Attorney General’s office.
2
 
The District also noted that, since September 11, 1995, Dr. Sutton has corresponded with the Complaining parents. On September 22, 1995 Dr. Kingery also sent a letter to you and other concerned parents. Dr. Kingery’s letter noted that, “none of the members of the parents group who Complained about the teacher have children assigned to her class this year and that matters you are continuing to Complain about are all related to last school year.” The administration considers this matter to be moot.
At page two of the District’s response, it stated that Dr. Sutton was still available to meet with concerned parents. At page three of the District’s response it stated that “the Board has nothing to provide to Ms. Adams in the way of documentation related to the March, 1995 decision to have the teacher take a leave of absence for the remainder of last year.” The Board also believes that it has fully and completely explained the actions of the administration and the Board in this matter.
3
 
 
THE LAW

§ 10001. Declaration of policy
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.
§ 10002. Definitions.
(d) “Public record” is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced. For purposes of this chapter, the following records shall not be deemed public:
(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;
§ 10003. Examination and copying of public records.
(a) 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. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. 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. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
DECISION AND ORDER
For the following reasons this office finds that no violation of the Freedom of Information Act has occurred or is about to occur. 29 Del. C. § 10005(e). First, the Board’s counsel has certified in writing that the District has provided all the documents and public records available in response to the Complainant’s document request. Second, through this required investigation pursuant to § 10005(e) and a review of all the documents submitted by the District’s counsel, as well as the Complainant herself, the Attorney General finds that the District has described in writing what action the Board took regarding Mrs. Bansbach, the reasons for her year long absence, and supplied other public records indicating an ongoing dialogue with concerned parents. The District also has continued its offer of an opportunity to meet with Ms. Adams and concerned parents. Third, since the District’s counsel has provided a number of public documents, as well as invited and agreed to meet with the Complainant to discuss these issues, the Attorney General believes the Board has fulfilled its obligation to comply with the statutory policy of the Freedom of Information Act. See 29 Del. C. § 10001.
 
Fourth, and finally, to the extent that this matter deals with a personnel issue, the Board has nonetheless openly discussed the action it took and the reasons for taking such actions. See 29 Del. C. § 10002(d)(1). Ordinarily, personnel records of an employee are deemed non-public records and need not be disclosed absent formal litigation initiated with the Court. Id.
If you have any further questions, please do not hesitate to contact us.
 
Very truly yours,
John K. Welch
Deputy Attorney General
APPROVED:
 
 
Michael J. Rich
State Solicitor
 
JKW/jb


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