December 23, 1997
New Castle County – Civil Division
Mr. Milton F. Morozowich
R.D. 2, Box 166
Bridgeville, DE 19933
RE: Freedom of Information Act Complaint
Against Woodbridge School District
Dear Mr. Morozowich:
This letter is our written determination in response to your
complaints alleging that the Woodbridge School District (the
“School District”) violated the Freedom of Information Act, 29
Del. C. Sections 10001-10005 (“FOIA”). All three letters of
complaint were received by this Office on November 5, 1997.
Your first letter, dated October 25, 1997, alleged that the
minutes of the executive session held by the School District on
October 7, 1997 were “vague and non-specific” and the meeting
should have been tape-recorded. Your second letter, dated October
29, 1997, alleged that the School District noticed an “emergency”
meeting on June 4, 1997 to discuss the assistant superintendent’s
employment contract, but in fact discussed other personnel issues
such as salary increases for all administrative staff. Your third
letter, dated October 30, 1997, alleges that the School District
purportedly met in executive session on October 21, 1997 to
discuss personnel matters, but in fact discussed matters not
authorized by statute to be closed to the public.
By letter dated November 6, 1997, we asked the School District to
respond to your three complaints within ten days. The School
District asked for, and we granted, a ten-day extension of time
to respond. By letter dated November 24, 1997, we received the
School District’s response, denying any violations of FOIA.
This Office declines to make any written determination regarding
the meeting on June 4, 1997. There is a 60-day statute of
limitations for any citizen to challenge in court a meeting
allegedly held in violation of FOIA. See 29 Del. C. Section
10005(a). While this Office is not bound by that statute of
limitations when it investigates FOIA complaints, this Office has
declined in the past to investigate matters which were not
brought to our attention in a timely fashion. See Att’y Gen. Op.
93-IO06 (Mar. 5, 1993); Att’y Gen. Op. 93-IO28 (Sept. 21, 1993).
While we have discretion to determine when a complaint is timely,
we conclude that the delay of almost six months in this case
warrants the conclusion that your complaint was not timely filed.
FOIA does not require a public body to tape-record its meetings
or executive sessions. The statute only requires that “[e]ach
public body shall maintain minutes of all meetings, including
executive sessions, conducted pursuant to this section, and shall
make such minutes available for public inspection and copying as
a public record.” 29 Del. C. Section 10004(f). This Office has
previously determined that the statutory duty to maintain written
minutes of public meetings does not require a public body to
tape-record the meeting. See Att’y Gen. Op. 94-IO23 (June 21,
1994).
Moreover, the minutes of executive sessions need only include “a
record of those members present and a record by individual
members (except where the public body is a town assembly where
all citizens are entitled to vote) of each vote taken and action
agreed upon.” 29 Del. C. Section 10004(f). But FOIA “neither says
that the subjects discussed must be summarized nor attempts to
define how specific such summary should be. . . . I cannot
conclude that there is a clear implied statutory requirement to
summarize the subjects discussed with any degree of specificity
in the minutes of executive sessions.” Common Cause of Delaware
v. Red Clay Consolidated School District Board of Education, Del.
Ch., C.A. No. 13798, 1995 WL 733401, at p. 4 (Dec. 5, 1995)
(Balick, V.C.).
We do not find that the School District violated FOIA in
connection with its October 7, 1997 meeting. The School District
prepared written minutes of the executive sessions convened
during that meeting. The minutes contain all of the information
required by statute.
With regard to the October 21, 1997 meeting, the agenda for that
meeting had a line item for “Executive Session – Personnel.” This
Office has previously determined that “‘it is not necessary to
identify the personnel in convening an executive session to
constitute personnel matters.'” Att’y Gen. Op. 96-IB27 (Aug. 1,
1996) (citation omitted). At the meeting, you reiterated a
concern you had previously raised with the Superintendent
regarding the size of your son’s classes and his request for
transfer. The Superintendent decided that it would be best to
take that matter up in executive session along with other
personnel matters. The legal question, then, is whether your
son’s request for transfer concerned the “names, competency and
abilities of individual employees or students,” the discussion of
which FOIA authorizes in executive session. 29 Del. C. Section
10004(b)(9).
We conclude that your son’s transfer request falls within the
personnel exception for executive session. A transfer request
based on large class size necessarily requires the School
District to consider the competency and abilities of the
individual student involved, as well as the respective competency
and abilities of the current teacher and the proposed teacher.
Conclusion
Based on your complaint, the School District’s response, and the
documents provided to us, we determine that the School District
did not commit any violation of FOIA in connection with the
October 7 and October 21, 1997 meetings. We decline to make any
determination regarding the June 4, 1997 meeting because the
complaint was untimely.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Approved:
____________________
Malcolm S. Cobin
Assistant State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Keith R. Brady, Esquire
Chief Deputy Attorney General
James D. Griffin, Esquire
Chrystyna Lafferty
Opinion Coordinator

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