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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