Civil Division-Kent County January 14, 2001 02-IB02
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Re: Freedom of Information Act Complaint Against Sussex County Council
Dear Mr. Kramer:
On December 3, 2001, our Office received your Freedom of Information Act (“FOIA”) complaint against the Sussex County Council (“the Council”) alleging that the Council violated the public record requirements of FOIA by failing to provide you with minutes of an executive session held on July 17, 2001.
By letter dated December 4, 2001 we asked the Council to respond to your complaint within ten days. We granted the request of the Council’s attorney for an extension of time because of the holidays, and received the Council’s response on January 4, 2002.
According to the Council, the minutes of the executive session on July 17, 2001 to discuss “land acquisition” are subsumed in the minutes of the public portions of that meeting, which were provided to you. The public minutes show that: the Council voted in public to go into executive session; the Council remained in executive session for six minutes; “[m]atters relating to land acquisition were discussed”; and the Council voted to go out of executive session.
FOIA requires public bodies like the Council to “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. § 10004(f). “Such minutes shall include a record of those members present and a record, by individual members
. . . of each vote taken and action agreed upon.” Id. FOIA exempts from disclosure the minutes of executive session “so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.” Id.
Your complaint requires us to determine whether public bodies like the Council must maintain minutes of executive session separate and distinct from the minutes of the public portions of a meeting of the public body.
Section 10004(f) distinguishes between minutes of public meetings and minutes of executive session for purposes of the public record requirements of FOIA. The minutes of public meetings are public records, while the minutes of executive session are not public records “so long as public disclosure would defeat the lawful purpose for the executive session.”
Logically, FOIA requires a public body to maintain separate minutes for executive session, otherwise the exemption from the public records requirements of FOIA would be superfluous. “In determining legislative intent in this case, we find it important to give effect to the whole statute and leave no part superfluous.” Keeler v. Harford Mutual Insurance Co., Del. Supr., 672 A.2d 1012, 1016 (1996) (quoting 2A Sutherland Statutory Construction § 46.06 (1995)).
Since the Council will be preparing minutes of executive session for the first time, we offer some guidance as to the required contents. The statute does not require a public body “to summarize the subjects discussed with any degree of specificity in the minutes of executive session.” Common Cause of Delaware v. Red Clay Consolidated School District Board of Education, Del. Ch., C.A. No. 13798 (Dec. 5, 1995). But the minutes of executive session must be sufficient to allow our Office to make an in camera determination that the subject(s) discussed during executive are authorized by FOIA. Otherwise, as part of our investigative responsibilities, we may need to hear from the Council members who attended the executive session. See Red Clay, supra (since there were only “bare-bone” minutes of the executive session, Common Cause had to depose each of the school board members).
What may satisfy the agenda requirements of FOIA (“land acquisition” is sufficient without identifying the land in question), may not satisfy the requirements for executive session minutes
For example, “it is not necessary to identify the personnel in convening an executive session to constitute personnel matters.” Att’y Gen. Op. 97-IB23 (Dec. 23, 1997). But it may be necessary to identify the individual involved and the nature of the personnel matter in the minutes of executive session to be sure what the public body actually discussed.
For the foregoing reasons, we find that the Council violated the open meeting requirements of FOIA by failing to maintain minutes of an executive session held on July 17, 2001.
We do not think that any remediation is necessary. It would difficult to re-construct the details of a brief meeting six months ago. There is nothing in the record to suggest that the Council did not discuss land acquisition, which FOIA authorizes as a subject for executive session. However, we caution the Council that in the future it must strictly comply with the open meeting requirements of FOIA and maintain separate minutes for each executive sessions.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Keith R. Brady, Esquire
Assistant State Solicitor
cc: Dennis L. Schrader, Esquire
Mr. Phillip G. Johnson, Opinion Coordinator