December 17, 1998
Kent County – Civil Division
Ms. Nancy H. Turner
176 West Main Street
Newark, DE 19711
RE: Freedom of Information Act Complaint  Against City of Newark
Dear Ms. Turner:
This is the Attorney General’s written determination in response
to your letter dated August 19, 1998 (received by this Office on
August 26, 1998) alleging that the City of Newark (the “City”)
violated the Freedom of Information Act, 29 Del. C. Sections
10001-10005 (“FOIA”). Specifically, you allege that the City
denied you the right to copy the minutes of an executive session
held on June 9, 1997. You further allege that the City allowed
another citizen, Alice Shurtleff, to copy these same records.
By letter dated September 28, 1998, we asked the City to respond
to your complaint but to limit its response to two questions: (1)
Whether the City provided other citizens with access to the
minutes of the June 9, 1997 executive session; and (2) How does
the City decide, as a matter of general practice, whether it will
disclose minutes of executive session to the public.
By letter dated September 29, 1998, you asked us to clarify
between reasonable access to public records, and the opportunity
to copy records. You pointed out that, as a Council member, you
had access to minutes of executive sessions, but that the City
would not let you copy them. By letter dated October 2, 1998, we
clarified this point for purposes of the City’s response to your
complaint.
By letter dated October 5, 1998, we received the City’s response.
The City noted that the minutes of the executive session on June
9, 1997 was the subject of recent litigation, Turner v. City of
Newark, Del. Ch., C.A. No. 15787 (Mar. 17, 1998) (Chandler, C.).
The City contends that you did not “move or request that the
Council vote on public disclosure of the ‘non-protocol’ personnel
matters discussed on June 9, 1997” after the Chancery Court ruled
in your favor. In contrast, another citizen, “Ms. Shurtleff made
a formal request for the minutes. That request was placed before
City Council. On July 27, 1998, the Council determined that
public disclosure of the requested portions of the minutes would
no longer defeat the lawful purpose for which the session was
called under 29 Del. C. Section 10004(f).” The City maintains
that its general practice is to consider requests for disclosure
of minutes of executive session on a case-by-case basis. “[T]he
Council acts on such request [by a citizen] or motion [by a
Council member] after consulting with its attorney.”
By letter dated October 7, 1998, the City further responded to
your claim that you were denied the right to copy minutes of
executive session. “In order to preserve the integrity and
confidentiality of Executive Session minutes, the Secretary has
adopted a practice of not distributing personal copies to Council
Members. Until and unless the Council has made a determination
that public disclosure will no longer ‘defeat the lawful purpose’
of an Executive Session, the Secretary does not permit any Member
of Council to have a personal file copy of a set of Executive
Session minutes.” The City stated “that Ms. Turner has been
provided nothing more nor less than her former colleagues on the
Council in regard to access.” The City distinguishes between Ms.
Turner’s position as a Council member, to which she is entitled
to “access,” and her position as a citizen to inspect and copy
records for whatever use. The City characterizes the FOIA
complaint, not as an “access” issue, but rather as a complaint
“about a procedure which the City of Newark has adopted to
attempt to maintain the integrity of Executive Session materials
while permitting controlled access to Council Members upon
request.”
By letter dated October 12, 1998, you replied to the City’s
October 5, 1998 response. You dispute what the City claims as its
historical practice of voting to decide whether to honor a
request (from a citizen) or a motion (from a Council member) to
release minutes of executive session. You stated that the City’s
stated practice was “boldly inconsistent” with the way in which
the City had handled a request, one year earlier, from another
citizen (Mr. Alfred Tarrant).
The Chancery Court Litigation
On July 1, 1997, you sued the City of Newark for violating FOIA
by going into executive session on June 9, 1997 to discuss
matters that were not authorized by statute. The Court found that
certain of the matters discussed clearly fell within the
“personnel” exception for executive session: (1) the hiring of a
new City Assistant Administrator; (2) the Police Chief’s possibly
taking a new job out-of-state; and (3) interviews for a new City
Finance Director. At issue was whether the portion of the
executive session, described as “Council Protocol,” was a
“personnel” matter. That portion of the meeting “involved a
lengthy and candid discussion among the Mayor and certain Council
members over the words and actions of other members of the
Council and the public perception of Council performance. This
discussion included personal criticisms, by some members of the
Council, of the motivations of other members. This discussion
evidently arose in part because of one councilman’s concerns
about a potential nominee to the City’s Ethics Board.” Letter
Opinion at p. 3.
The Chancery Court rejected the City’s argument that the
“Protocol” portion of the executive session fell within the
“personnel” exception to FOIA. The Court found that during the
“Protocol,” no personnel file “was discussed or circulated among
Council members . . . And certainly no disclosures of
confidential information about individual members of the Council
or employees of the City occurred . . . .” Letter Opinion at pp.
6-7. The discussion during the Protocol “easily qualified” as
“‘public business.’ Council members were engaged in a frank
debate over a matter of public policy about which members of the
public have a right to be informed as a means both to observe the
performance of their public officials and, perhaps, to better
understand the decisions that they make.” Letter Opinion at p. 7.
The Chancery Court believed that the “members of the Council
acted honestly and in good faith in convening the executive
session and in undertaking a discussion of both personnel issues
and Council protocol issues.” Letter Opinion at pp. 8-9.
Nevertheless, the Court held that “the non-personnel matters
discussed during the executive session were ‘public business’ and
should have been discussed fully and openly during the June 9
meeting.” Id. at p. 9.
Pertinent Statutes
FOIA excepts from the definition of “public record” any “record
of discussions held in executive session pursuant to subsections
(b) and (c) of Section 10004 of this title; . . . .”
29 Del. C. Section 10002(d))(10). Subsection (b) of Section 10004
authorizes a public body to go into executive session for any of
nine reasons, including “personnel matters.” See 29 Del. C.
Section 10004(b)(9).
In the Chancery Court litigation, the Court demarcated what
portions of the June 9, 1997 executive session were within the
“personnel” exception under FOIA. The Council “Protocol” portion
of the meeting was not within that exception, so any minutes of
that portion of the meeting are “public records” under FOIA and
must be made available for inspection and copying upon request by
a citizen.
As for the portion of the minutes dealing with “personnel”
matters, a public body has discretion under FOIA to make minutes
of executive session available to the public if it determines
that public disclosure would no longer “defeat the lawful purpose
for the executive session.” 29 Del. C. Section 10004(f).
Legal Analysis
It is difficult to segregate the FOIA issue raised by your
complaint from the procedure by which the Council, historically
or on ad hoc basis, decides whether to release minutes of
executive session to the public. The City argues that its
policies and procedures regarding the release of confidential is
not governed by FOIA because the City has discretion to decide
whether disclosure of the minutes of an executive sessions would
no longer “defeat the lawful purpose for the executive session.”
Irrespective of the Council’s procedural requirements, however,
FOIA is implicated if the process works to deny any citizen
reasonable access to records that can be disclosed under FOIA.
Your request for the minutes of the June 9, 1997 meeting was
forestalled by the Chancery Court litigation until the Court
ruled in your favor on March 18, 1998. The City then decided to
release the pages of the minutes of the “Protocol” section of the
June 9, 1997 meeting. On March 31, 1998, you then renewed your
request for the minutes, not only for the “Protocol” portion, but
also for the portion dealing with personnel matters. Under
Section 10004(f) of FOIA, the City had discretion to release the
section of minutes regarding personnel matters if it believed
that the personal privacy of the individual(s) involved would not
be compromised. You also asked for the minutes of executive
sessions held on July 14 and September 22, 1997. Those minutes
were not at issue in the Chancery Court litigation.
By memorandum dated March 31, 1998, the City Secretary denied
your request for the minutes of the three executive sessions,
citing a memorandum dated June 18, 1997 (“[o]nce Council as a
whole, and/or its legal counsel, decides the release of these
minutes will not compromise the confidential nature of the topic
discussed, I will then release them as directed”). Apparently, it
is the City’s position that it was then incumbent upon you to
cause the Council to place on its agenda a vote to decide whether
to release the minutes of the June 9, 1997 meeting per your
request under FOIA.
Subsequently, another citizen, Helen Shurtleff, made a request
for the personnel portions of the June 9, 1997 executive session
minutes. At its meeting on July 27, 1998, the Council voted
unanimously to release to Ms. Shurtleff the first four pages of
the minutes dealing with personnel matters.
FOIA does not prescribe any procedures by which a public body
determines whether disclosure of the minutes would “no longer
defeat the purpose” of the executive session. Since the decision
is discretionary, a public body could, as long as the need for
protection of the records exists, follow a uniform rule of not
disclosing the minutes of executive session under any
circumstances. However, once the public body determines that
disclosure would no longer defeat the purpose of the executive
session and that the record may be publicly disclosed,
availability must be permitted in a consistent and fair manner.
“When the agency exercises its permissive disclosure authority,
public inspection follows.” Black Panther Party v. Kehoe, 42
Cal.App.3d 645 (1974). The public records laws do not permit a
government agency “to indulge in selective disclosure . . .
Records are completely public or completely confidential. The
Public Records Act denies public officials any power to pick and
choose the recipients of disclosure.” Id. at 656.
The City tries to distinguish between Ms. Shurtleff, who it
claims “made a formal request for the minutes” of the June 9,
1997 meeting, and you, who did not “move or request that the
Council vote on public disclosure of the ‘non-protocol’ personnel
matters discussed on June 9, 1997.” This distinction is
untenable. FOIA only requires a citizen to request reasonable
access to inspect and copy records. If a request is made to copy
minutes of an executive session, it is not incumbent upon the
citizen to frame that request using particular words of art or to
ask for a vote by the public body to decide whether disclosure
would “no longer defeat” the purpose of the executive session.
The FOIA request itself triggers the requirement that the public
body follow its normal procedures to determine whether the
records may be made available to the public.
We do not find anything in the record provided to us to show that
your request for the minutes of the January 9, 1997 executive
session was any different than Ms. Shurtleff’s. Once the Council
decided to release the complete minutes to Ms. Shurtleff, the
minutes became a public record for all purposes and should have
been provided to you as well.
We do not decide the question of access to or for copies of the
minutes of the executive session meetings on July 14 and
September 22, 1997. There is no evidence in any of the documents
submitted to our office in connection with this complaint to
suggest that the reason for going into executive session on those
dates was not authorized by statute, or that the City has
released copies of the minutes of those two meetings to any other
citizen. In fact, the city secretary’s memorandum of March 31,
1998 incorporates a June 18, 1997 memorandum to you setting forth
the policy and procedure which must be followed to obtain public
access to the minutes. Since the Council has not voted in
accordance with its policy to make those minutes public, there is
no FOIA violation as to the Council’s refusal to provide the
minutes of the meetings of July 14 and September 22, 1997 to you.
Conclusion
Based on your complaint, the City’s responses, your reply, and
the documents provided to us by both parties, we determine that
the City violated the public records provisions of FOIA by not
providing you with a complete copy of the minutes of the
executive session held on June 9, 1997 after the Chancery Court
issued its Letter Opinion dated March 17, 1998, in light of the
Council’s decision to make the same minutes available to Ms.
Shurtleff. To remedy that FOIA violation, we direct the City to
provide you with a copy of those minutes within thirty days of
the date of this letter.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Approved:
Michael J. Rich
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Roger A. Aiken, Esquire
Chrystyna Savitz
Opinion Coordinator

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