Del. Op. Atty. Gen. 02-IB17 (Del.A.G.), 2002 WL 31031224
Office of the Attorney General
State of Delaware
Opinion No. 02IB17
August 6, 2002
Re: Freedom of Information Act Complaint Against Capital School District Board of Education
*1 Mr. Cecil C. Wilson
President
NAACP Central Delaware Branch # 2028
P.O. Box 133
Dover, DE 19903-0133
Dear Mr. Wilson:
On April 8, 2002, our Office received your Freedom of Information Act (“FOIA”) complaint against the Capital School District Board of Education (the “School Board” or “Board”) alleging that the School Board violated FOIA by: (1) not providing access to public records you requested; and (2) meeting to interview applicants for a new superintendent without notice to the public.
By letter dated April 10, 2002, we asked the School Board to respond to your complaint. After several extensions of time, we received the Board’s response on June 10, 2002. We made three further requests for information from the Board, which we received on June 21, July 3, and July 10, 2002.
 
Relevant Statutes
 
FOIA requires that “[a]ll public records shall be open to inspection and copying by a citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C. § 10002(a).
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session for one of nine purposes authorized by statute. Id. § 10004(a). One exception is to discuss “an individual’s qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open.” Id. § 10004(b)(1).
 
Legal Analysis
 
A. Public Records
 
By letter dated March 25, 2002, you asked the School Board for all public notices of regular meetings of the School Board, and for the salary of the interim superintendent. According to the School Board, they faxed the salary information to you on March 27, 2002. By letter dated April 10, 2002, the Board informed you that the notices “are available at the District office for your review.” The School Board has made the public notices of its regular meetings available to you, and has provided the salary information you requested. We consider the public records part of your complaint resolved.
 
B. Open Meetings
 
The School Board admits that it conducted “superintendent candidate interviews without providing public notice.” The Board contends that “[s]uch meetings were entirely devoted to the type which would, in all events, have been conducted in an executive session closed to the public (i.e., discussion of an individual citizen’s qualifications to hold a job).”
Under FOIA, a public body has the burden of proof “to justify a decision to meet in executive session.” 29 Del. C. §10005(c). To meet the burden to discuss an individual’s qualifications to hold a job, the School Board must offer “affidavits or other material sufficient to show” that the exception is justified. Guy v. Judicial Nominating Commission, Del. Super., 659 A.2d 777, 781 (1995) (Ridgely, Pres. J.).¹
*2 There is little Delaware case law on point, so we look to court decisions in other states for guidance to apply the “applicant exemption” for executive session under Delaware’s open meeting law.
 
1. Michigan
 
In Booth Newspapers, Inc. v. University of Michigan Board of Regents, Mich. Supr., 507 N.W.2d 422 (1993), the Board of Regents conducted a nationwide search for a new university president. The board met several times in private to discuss the applications received, interview the applicants, and compare the applicants, thus winnowing the number of applicants from 250 down to two. The board reached a consensus in favor of one candidate (Dr. James Duberstadt) in another private meeting. The board then interviewed Dr. Duberstadt in an open meeting with selected student, faculty, and alumni representatives. The board went back into a closed session, decided to select Dr. Duberstadt as the new university president, and then announced its decision in public.
The Michigan Supreme Court held that the board violated the state open meeting law. Like Delaware’s FOIA, the Michigan law authorizes executive session to “review the specific contents of an application for employment or appointment to a public office if the candidate requests that the application remain confidential.” Mich.Stat.Ann. § 4.1800(18)(f). The court found that “the board went well beyond this limitation and made reduction decisions under the guise of this exemption.” 507 N.W.2d at 431. “[T]he Legislature intended this exemption to be a limited compromise, allowing privacy rights to dictate in instances where boards were not engaged in decision-making activities…. Consequently, the act mandates that the [board] make any reduction decisions in public.” 507 N.W.2d at 431.²
The court rejected the argument that the board’s private meetings were only a “consensus building process” because the board announced the selection of the new university president in public.
The only part of the decision-making process that occurred in public was the final step: Dr. Duderstadt’s selection from a list of one. The [board] did not make the decision to appoint Dr. Duberstadt publicly, it merely announced the decision publicly. Dr. Duderstadt’s elevation to the position of university president was a fait accompli by the commencement of the public meeting held on June 10, 1988.
507 N.W.2d at 430. The court remanded the case to the trial court “for injunctive relief compelling disclosure in conformity with this opinion.” Id. at 433.
 
2. Alaska
 
In City of Kenai v. Anchorage Daily News, Inc., Alaska Supr., 642 P.2d 1316 (1983),
the city council met in private to review applications and interview applicants for city manager. The state open meeting law authorized the council to meet in executive session to discuss “subjects that tend to prejudice the reputation and character of any person.” Alaska Stat. § 44.62.310(c). The Alaska Supreme Court held that the city council lawfully met in private to discuss the candidates for city manager because of the “risk that the applicant’s reputation will be compromised. Such a risk is especially acute where the qualities of several applicants are being compared.” 642 P.2d at 1326. “Care should be taken, of course, to observe the procedures for convening executive session…. The meeting must first be convened as public [and] only excepted subjects, and only those mentioned in the motion calling for executive session, may be considered in the executive session, and no action may be taken at the executive session.” Id. at 1326 n.29.
 
3. Washington
 
*3 In Miller v. City of Tacoma, Wash. App., 979 P.2d 429 (1999), the city council interviewed four candidates for a vacant position on a planning commission at an open meeting. The council went into executive session to evaluate the qualifications of the candidates, and reached a consensus in favor of one of the candidates (Thompson) using preferential ballots. Back in public session, the council voted to appoint Thompson. The state open meeting law authorized executive session “to evaluate the qualifications of applicants for public employment,” Rev.Code Wash. § 42.30.110(1)(g). But the state appeals court held that the council violated the open meeting law. “[I]t is clear the council could discuss and consider the worth, quality and significance of the applicants’ qualifications, and individual council members could express their opinions on such matters, but they could not choose a candidate. They did not just weigh or evaluate the qualifications of the applicants, but identified a consensus candidate for appointment to the planning commission. As such, these secret ballots … fell outside the scope of the [applicant] exemption.” 979 P.2d at 434.
The court awarded attorneys’ fees in favor of the plaintiffs, but declined to impose civil fines because the council members “believed that they were acting appropriately under the law.” Id. at 436.
 
4. New Jersey
 
In Gannett Satellite Information Network, Inc. v. Board of Education of the Borough of Manville, N.J. Super., 492 A.2d 703 (1984), five people applied for a vacant position on the school board. The board met in executive session to interview the applicants, and reached a consensus to appoint one of the candidates. The state open meeting law authorized executive session to discuss the appointment and evaluation of “any specific prospective public officer.” N.J.Stat.Ann. § 10:4-12(b)(8). The New Jersey Superior Court held that the board violated the law because it decided in executive session which candidate should fill the school board vacancy. The announcement of his name in public session was a mere formality. “There was no opportunity for the public to ‘witness the deliberation, policy formulation and decision making”’ of the board. 492 A.2d at 705 (quoting Jones v. East Windsor Board of Education, N.J. Super., 362 A.2d 1228, 1234 (1976)). “[W]hile the Board could exclude the public from its deliberations on the qualifications of the various candidates,” the applicant exemption “is not an excuse for excluding the public from the entire process.” Borough of Manville, 492 A.2d at 705. The court invalidated the appointment of the new school board member.
 
5. Pennsylvania
 
In The Morning Call, Inc. v. Board of School Directors of Southern Lehigh School District, Pa. Cmwlth., 642 A.2d 619 (1994), the school board hired a private consultant to search for a new superintendent. The consultant advertised the position, screened the applicants, and recommended six of the applicants. The board then met in executive session with the consultant to interview those applicants. After deciding on three finalists, the board held a public meeting so that citizens could meet and speak with the applicants. At a second public meeting, the board sought input from community members, teachers and administrators. Two days later, the board met an executive session to re-interview the three finalists, narrowing the field to one. At a public meeting, the board voted to hire the remaining candidate for the superintendent position.
*4 The Pennsylvania Commonwealth Court held that the school board did not violate the state open meeting law, which authorized executive session to “discuss any matter involving the appointment … of any specific prospective public officer or employee.” 65 Pa.Stat. § 278(a)(1). The elimination of applicants during the executive sessions was “part of that discussion and deliberation authorized to be conducted at a private executive session [and] really nothing more than a further rating and ranking of these non-finalists.” Southern Lehigh, 642 A.2d at 623. “[P]ublic policy allows that the selection process for public officials be conducted at executive session in order to attract the largest number of qualified candidates without compromising their professional reputations or standing at their current positions.” 642 A.2d at 624 n.9.
The court distinguished the Michigan Supreme Court’s decision in Booth Newspapers because the Pennsylvania open meeting law applied only when a public body takes “official action,” that is, “the vote to hire a specific individual as superintendent.” Southern Lehigh, 642 A.2d at 625. Delaware’s open meeting law, in contrast, applies to any “discussion, investigation or deliberation about public business” even if the public body “reached no formal decision at that private meeting.” Levy v. Board of Education of the Cape Henlopen School District, Del. Ch., C.A. No. 1447, at p. 6 (Oct. 2, 1990) (Chandler, V.C.). “[P]olicy decisions by public bodies cannot realistically be understood as isolated instances of collective choice, but are best understood as a decisional process based on inquiry, deliberation and consensus building.” Id.
 
6. Louisiana
 
In Brown v. East Baton Rouge Parish School Board, La. App., 405 So.2d 1148 (1981), the school board met in executive session to review the 41 applications received for a new superintendent. The board went back into public session and voted to give further consideration to ten named applicants. At a later public meeting, the board went into executive session to interview those applicants. In public session, the board voted to give further consideration to four named applicants. Before the final selection, public interest groups sued alleging that the board had violated the state open meeting law, which permitted executive session to discuss “the character, professional competence, or physical or mental health of a person.” La.Rev.Stat. § 42:6.1 (A)(1). The Louisiana Appeals Court held that the board violated the law because it went beyond discussion of applicant qualifications to engage “in a process of eliminating and actually engaged in selecting certain persons for further consideration and rejecting others.” 405 So.2d at 1155. “[T]he practical effect was to reduce the number of people under active consideration and to in effect eliminate all but those ten, and then four, applicants named after each of the executive sessions.” Id. at 1152.
*5 The court emphasized “that the selection of a superintendent of schools is by nature a public undertaking.”
In all selection processes there are winners and losers; those who are chosen and those who are not. Except for the one applicant who was selected, it was inevitable that all those who applied for this position would be rejected. And, this fact must unavoidably become public knowledge. This is true whether the voting is done in public or private. While those who are not chosen might naturally be more comfortable with a private display of the relative support each obtained, we believe that promoting the public policy of openness mandated by this law is far more important to our society as a whole than is the avoidance of whatever slight discomfort, if any, might occur to an individual applicant. And, we do not believe that applicants for this public position could reasonably expect that the actual voting on a group of semi-finalists or finalists would be done in private or kept secret.
405 So.2d at 1154. The court ordered the school board to undertake a new selection process for superintendent in compliance with the state open meeting law.
 
7. Summary of the Case Law
 
There are variations in language of the “applicant exemption” in the open meeting laws in other states, yet we derive several principles of universal application.
-The courts construe the exemption narrowly.
-The exemption is for the benefit of the applicant, not the public body.
-The public body cannot shield the entire process from public view, and vote to hire a consensus candidate at a public meeting.
-The public body must observe the statutory formalities for going into executive session, in particular the maintaining of minutes.
As with so many FOIA issues, it is a question of balance. When a school board is hiring a new superintendent, the public interest is to attract as many qualified candidates and not deter applicants who fear jeopardizing their current employment. But any candidate must expect that when he or she proceeds to the later stages of the selection process, there will be “open and public consideration of professional competence.” Attorney General v. School Committee of Northampton, Mass. Supr., 375 N.E.2d 1188 (1978). “At some point before the final selection … prudence would require the municipality to contact the employers of those applicants whose applications are being seriously considered to verify the accuracy of the representations made by the applicants.” City of Kenai, 642 P.2d at 1324.
 
C. The School Board’s Selection Process
 
We distilled the facts about the superintendent selection process from the minutes of School Board meetings (public and private). Minutes of executive session may be exempt from disclosure under FOIA. See 29 Del. C. § 10002(d)(10) and § 10004(c). In the course of our investigations, we sometimes ask to review executive session minutes in camera with strict assurances of confidentiality. Our summary of some of the School Board’s minutes of executive sessions within this opinion is not inconsistent with those assurances for two reasons. First, for many of the meetings we find that FOIA did not authorize an executive session. See Chemical Industry Council of Delaware, Inc. v. State Coastal Zone Industrial Control Board, Del. Ch., Civ.A. No. 1216-K (May 19, 1994) (Jacobs, V.C.) (“Because no lawful statutory purpose for most of those discussions has been demonstrated, it follows that the Board has not justified withholding the [record] of those discussions.”). Second, the exemption for executive session minutes applies only “so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.” 29 Del. C. § 10004(c). The School Board has selected a new superintendent, so disclosure of those portions of executive session minutes involving the selection process would not defeat any lawful purpose for executive session.³
 
1. October 2 and 17, 2001 Meetings
 
*6 The School Board went into executive session on October 2, 2001 to discuss “personnel” matters. Three private consulting firms made presentations for a proposed superintendent search process, and answered questions from Board members. According to the minutes, the Board then “discussed the 3 search firms that had been interviewed. The discussion touched on the following: the reputation of the firm; the experience; expenses; how presentations were made; the firms’ local and regional search capabilities; the search process for the last superintendent; how the firms were recommended; local applicants; and the possibility of the firms reappearing before the Board.”
On October 17, 2001, the School Board went into executive session to discuss “personnel” matters. The Board re-interviewed the three search firms. After the interviews and further discussion among the Board members, they reached a consensus to hire Dr. Jeremiah Floyd subject to reference and background checks.
When the Board returned to public session at its meeting on October 17, 2001, it resolved to hire Dr. Floyd as consultant for the superintendent search.
We determine that FOIA did not authorize the Board to go into executive session at its meetings on October 2 and 17, 2001 to discuss and select a search firm. The “personnel” exemption on which the Board relied is limited to discussion of “the names, competency and abilities of individual employees or students” unless “the employee or student requests that such a meeting be open.” 29 Del. C. § 10004(b)(9). A search consultant is not an “employee” of the School Board. In Hinds County Board of Supervisors v. Common Cause of Mississippi, Miss. Supr., 551 So.2d 107 (1989), the board of supervisors met in executive session to interview architectural firms competing to design a new public building. The Mississippi Supreme Court rejected the claim that under the state open meeting law this was a “personnel” matter. “Hiring persons or firms who in the law will be regarded as independent contractors will almost never be ‘personnel matters.”’ 551 So.2d at 114. Moreover, it “is in the public interest that discussions with architect applicants, or any other applicant proposing to render public services or engage in a public contract, be entirely open.” Id. See also Board of Trustees of Austin Independent School District v. Cox Enterprises, Inc., Tex. App., 679 S.W.2d 86, 90 (1984) (school board could not meet in executive session to choose a search consultant for a new superintendent because the applicant exemption under the Texas open meeting law “does not apply to independent contractors”).
Nor can the School Board rely, after the fact,⁴ on Section 10004(b)(1) of FOIA, which authorizes executive session to discuss “an individual citizen’s qualifications to hold a job or
pursue training unless the citizen requests that such a meeting be open.” 29 Del. C. §10004(b)(1). In Rowen v. Santa Clara Unified School District, 121 Cal.App.3d 221 (1981), the school board met in executive session with three real estate firms to select one as the broker to sell school property. The California Appeals Court held that the board could not rely on the open meeting law to meet in executive session to discuss the “appointment” or “employment” of “a public employee.” Cal.Code § 54957.6. The real estate firms “were independent contractors and not ‘employees’ as that term is generally used.” 121 Cal.App.3d at 234. The “‘qualifications’ of real estate specialists to assist a school board in disposing of surplus real estate” would not “likely involve such sensitive matters as to require concealment from an interested public. And the fact that contracts for special services are exempt from bidding requirements highlights the importance of public scrutiny.” Id. (footnotes and citations omitted).
*7 We find that the School Board violated FOIA when it met in executive sessions on October 2 and 17, 2001 to interview and discuss the three search firms, and then to reach a consensus vote to hire Dr. Floyd.
 
2. March 2 and 6, 2002 Meetings
 
At its meeting on March 2, 2002, the School Board went into executive session to discuss “personnel” matters. The discussion focused on the mechanics of the selection process. The Board talked about a point scoring and tiering system; questions to ask the candidates; district demographics, what the Board expects of a superintendent; and scheduling interviews and site visits.
On March 6, 2002, the Board met in executive session to discuss the superintendent search as a “personnel” matter. The Board discussed the mechanics of the selection process and the criteria for a new superintendent, not the job qualifications of applicants.
We find that the School Board violated FOIA when it met in executive sessions on March 2 and 6, 2002 for a purpose not authorized by the statute. The public had a right under FOIA to be involved in this phase of the superintendent selection process. See Parent-Community Alliance for Quality Education v. Orleans Parish School Board, La. App., 385 So.2d 33, 35 (1980) (the school board held two public meetings to allow citizens, including school administrators, teachers, and parents, “an opportunity to convey to [the consultants] anything they thought of importance in establishing a profile for the new superintendent” and then use these “suggestions, comments, recommendations, and directions received from these multiple sources” to compile “a statement of criteria for the selection of the new superintendent”).
 
3. March 8, 9, and 10, 2002 Meetings
 
Dr. Floyd reviewed the 41 applications for the new superintendent, and on March 3, 2002 recommended that the School Board interview seven of the candidates. Over a long weekend (March 8, 9, and 10, 2002), Dr. Floyd and the entire Board met with six of the seven applicants (one dropped out) in a conference room at a hotel in Dover. After the interviews, the Board discussed their individual impressions of the applicants. By consensus, the Board asked Dr. Floyd to invite three of the applicants back for second interviews.
The Board admits that it did not notice these meetings to the public as required by FOIA, and it did not maintain minutes of the meetings. We find that the School District violated the open meeting requirements of FOIA by failing to give notice to the public of its meetings on March 8, 9, and 10, 2002. If a public body meets to discuss only matters that are authorized for executive session, FOIA still requires that the meeting be noticed to the public. The public have a right to attend the opening of the meeting, to see that the public body follows the required procedures for going into executive session, and to observe the discussion of any public business that follows. These requirements are all the more important in the context of the “applicant exemption” because the exemption is solely for the benefit of the applicant, who has a right to public consideration.
*8 We also find that the Board violated FOIA by not maintaining minutes of its meetings on March 8, 9, and 10, 2002. Without minutes, the Board cannot meet its burden of justifying the applicant exemption. No doubt, most of the meetings involved interviews and discussion of the applicants’ job qualifications, which are appropriate subjects for executive session. But we find that the Board exceeded the lawful scope of executive session when it went beyond a discussion of the applicants’ job qualifications and selected the final three applicants for further consideration.
 
3. April 2002 Meetings
 
On April 11, 2002, the School Board met in executive session (again, under “personnel”) to discuss the new superintendent’s contract and the site visit reports. For reasons stated earlier in this opinion, we do not believe these were a “personnel” matters. At this late stage in the process, the three final applicants did not have a reasonable expectation of privacy to justify an executive session under Section 10004(b)(1). Their current employers had to be aware of their application through reference checks and the site visits.
The School Board held a public meeting on April 15, 2002 to meet and question the three finalists (code named “Candidate A,” “Candidate B,” and “Candidate C”). The Board scheduled three, one-hour sessions (one for each candidate) with a facilitator for the discussion among teachers, administrators, and other interested persons. The Board provided each person with a reaction/response sheet to return (unsigned) to the facilitator after each session.
On April 16, 2002, the School Board met in executive session to discuss “personnel” matters. The Board invited representatives from the four local affiliates of the Delaware State Education Association for their input on the superintendent selection process and the three final candidates. We find that the Board violated FOIA by going into executive session at this meeting because the purpose is not authorized by statute. For reasons stated earlier, this was not a “personnel” matter, and the three finalists did not have a reasonable expectation of privacy at this stage of the selection process to outweigh the public interest after they had already participated in a public meeting the day before. We commend the School Board for including the local affiliates in the process, but that should have been done in public.
At a public meeting on April 17, 2002, the School Board resolved to hire Dr. Michael Thomas as the new Superintendent starting July 1, 2002. According to the minutes, there was no discussion of the respective qualifications or merits of the final three candidates. We can only assume, therefore, that the Board reached a consensus on Dr. Thomas at its executive session on April 16, 2002. We find that the School Board violated FOIA by deciding who to hire as the new superintendent outside of public view.
 
D. Remediation
 
These violations of FOIA are not technical because they affected “substantial public rights” of students, parents, teachers, and other concerned citizens in the school district to be involved in the selection of the new superintendent. See Ianni v. Department of Elections of New Castle County, Del. Ch., 1986 WL 9610, at p. 6 (Aug. 29, 1986) (Allen, C.). The courts in other states to which we look for guidance are divided over whether invalidation is the appropriate remedy for these kinds of violations. We cannot be certain how the Delaware Court of Chancery might decide, but it would likely taken into account that the latter portion of the selection process was open to the public, and interested citizens had the opportunity to meet and evaluate the three finalists to voice their views and to influence the final selection of a new superintendent. No doubt, the Chancery Court, in exercising its equitable discretion, would be mindful that a new school year begins next month, and the disruption that another search might have on students, teachers, and school administrators. For these reasons, we decline to determine, by Attorney General opinion, that the selection of the new superintendent was invalid for violation of the open meeting law.
*9 We are not unmindful that because the School Board did not respond to all of our requests for information in a timely fashion, this investigation was protracted. We understand that changes in school personnel were partly the reason. We want to make it clear, however, that no public body should consider that it could benefit, from the passage of time, by not cooperating with our investigation in a timely manner. Had we thought the delay in this matter was intentional, our decision might have been different.
We now comment on what be believe is a general misunderstanding of the proper scope of the use of executive session. We hope the Board finds it instructive.
For the last six months, the School Board has met in executive session at every meeting to discuss “personnel,” “negotiation,” and “litigation” matters. The “personnel” exception for executive session under FOIA is very limited. The discussion must “directly involve the consideration of individual employees by name, competency, and ability.” Att’y Gen. Op. 96-IB32 (Oct. 10, 1996). Accord Att’y Gen. Op. 02-IB12 (May 21, 2002). To take one example, in executive session on March 13, 2002, under “Personnel,” the School Board discussed a panoply of topics (construction issues, referendum requirements, and upcoming meetings with the Department of Education). None of these topics fall within the “personnel” exception for executive session under FOIA.
FOIA does not have an executive session exception for “negotiations.” Section 10004(b)(4) authorizes a public body to discuss in executive session “[s]trategy 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.
§ 10004(b)(4). It appears that the School Board routinely discusses matters of public business in executive session under the guise of “negotiations” or “litigation.” For example, the Board invited representatives from Bancroft Construction to its private meetings on March 21, April 11, April 17, and May 1, 2002 to discuss construction progress, budget, bids, and change orders. FOIA does not authorize discussion of any of those matters in executive session.
The School Board also appears to misunderstand the so-called “litigation” exception for executive session. Section 10004(b)(4) allows a public body to meet in executive session with an attorney “for legal advice with respect to pending or potential litigation the disclosure of which would have an adverse effect on the [public body’s] litigation position.” Att’y Gen. Op. 02-IB12 (May 21, 2002). The “potential litigation exception for executive session applies only when there is a ‘realistic and tangible threat of litigation’ based on ‘objective factors.’ Some indicia of such a situation might include a written demand letter, notice of threat to sue, or ‘previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims.”’ Att’y Gen. Op. 02-IB13 (May 21, 2002) (quoting Claxton Enterprise v. Evans County Board of Commissioners, Ga. App., 549 S.E.2d 870, 874 (2001)).
*10 The School Board’s practice of inviting select members of the public to attend its executive sessions also raises concerns. FOIA does not directly address the issue, but several of the exceptions for executive session imply the presence of non-board members (such as attorneys to discuss litigation strategy, or teachers and school administrators in student discipline cases). We believe that FOIA allows a public body to invite individuals to attend an executive session to provide information related to the subject matter for which the executive session is authorized. But a public body cannot invite non-members as observers, or to participate in the discussion of matters not authorized for executive session. In such a role, the interests of the non-member in attendance are indistinguishable from those of any other member of the public. Their admission to the exclusion of others transforms the so-called executive session into a meeting that must be open to all of the public.
Because of these concerns, we suggest that the School Board meet with legal counsel in a public meeting to draft written rules, procedures, and policies which conform to the law regarding executive sessions. We note that the Board’s current written policy (BP-9315) deviates from FOIA in several respects, and could cause additional problems. The Attorney General’s website contains our Delaware Freedom of Information Act Policy Manual (1997) (www.state.de.us/attgen/foia.pdf) and its 2001 Supplement (www.state.de.us/attgen/foia2001.pdf) which may provide guidance to the Board and counsel. In addition, all of our individual FOIA opinions are posted on the first website.
 
Conclusion
 
For the foregoing reasons, we decide that the School Board did not violate the public records requirements of FOIA. We decide that the School Board violated the open meeting requirements of FOIA by: (1) meeting in executive sessions on October 2 and 17, 2002 for a purpose not authorized by statute; (2) meeting in executive sessions on March 2 and 6, 2002 for a purpose not authorized by statute; (3) by meeting on March 8, 9, and 10, 2002 without posting public notices and agendas and without maintaining minutes of those meetings; (4) meeting in executive session on April 11, 2002 for a purpose not authorized by statute; and (5) meeting in executive session on April 16, 2002 for a purpose not authorized by statute.
For equitable reasons, we do not require the School Board to repeat the selection process for a new superintendent. We direct the Board to consult with legal counsel to revise its written rules, policies, and practices regarding executive session so that they are in accord with FOIA and this opinion. The School Board is further cautioned to strictly comply with the open meeting requirements of FOIA in the future.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
 
Approved
 
Keith R. Brady, Esquire
Assistant State Solicitor

Footnotes
1	Guy was not an open meeting case, but rather a request for public records about the judicial nominating process. The Superior Court held that under Section 10002(d)(6) of FOIA, the records were exempt from disclosure under the common law of executive privilege.
2	Michigan’s applicant exemption is narrower than Delaware’s. It allows discussion of applications in executive session, but requires that “all interviews by a public body for employment or appointment to a public office shall be held in an open meeting pursuant to this act.” Mich.Stat.Ann. § 4.1800(18)(f).
3	We have been careful not to disclose the names or other identifying information or job qualifications of any of the applicants who were not selected.
4	In Att’y Gen. Op. 95-IB35 (Nov. 2, 1995), the school board listed on the agenda for executive session “personnel matters” when in fact the board discussed the qualifications of applicants for a new school principal. Because Section 10004(b)(1) of FOIA authorized meeting in private for that purpose, we decided that the FOIA violation was technical and did not require remediation.

 
Del. Op. Atty. Gen. 02-IB17 (Del.A.G.), 2002 WL 31031224

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