May 6, 2003
Kent County – Civil Division (739-7641)
Ms. Bonnie S. Mucha
10 W. Elgin Court
Newark, DE 19702-4005
RE: Freedom of Information Act Complaint Against Christina School District
Dear Ms. Mucha:
On March 11, 2003, we received your letter alleging that the Christina School District (“the School District”) violated the open meeting requirements of the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), by (1) not giving the public seven days’ notice of a meeting on February 26, 2003; and (2) going into executive session at that meeting for a purpose not authorized by law.
By letter dated March 20, 2003, we asked the School District to respond to your complaint within ten days. We received the School District’s response on April 2, 2003. We then asked the School District for a copy of the minutes of the executive session held on February 26, 2003 for our in camera review, which we received on April 4, 2003.
According to the School District, the February 26, 2003 meeting of the School District “was a special meeting held less than seven days after the scheduling decision was made. The
[School] District complied with the requirements of 29 Del. C. § 10004(e)(3) by giving at least 24 hours notice of the meeting, and providing an explanation as to why 7 days notice could not be given.” The notice of the meeting (a copy of which was attached to your complaint) confirms that the School District posted notice of the February 26, 2003 meeting on February 25, 2003 twenty-four hours in advance, and stated: “Less than 7 days notice of this meeting is being provided because the consultants involved in gathering the information which will be discussed are leaving the State on the evening of February 26, 2003, and the closing of school the week of February 17, 2003 [due to snow] interfered with the ability to schedule and post notice of the meeting.”
The notice for the February 26, 2003 meeting also stated that the School Board would meet in executive session “to discuss issues and concerns in the District which must be addressed by the new Superintendent. This discussion will be pervaded by references to the names, competencies and abilities of District employees.” The School District claims that FOIA authorized an executive session for this purpose to discuss “personnel matters.” See 29 Del. C. § 10004(b)(9).
FOIA requires that “[e]very meeting of all public bodies shall be open to the public execpt those closed for” for executive session as authorized by law. 29 Del. C. § 10004(a).
FOIA authorizes a public body to meet in executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such meeting be open.” Id. § 10004(b)(9).
As a general rule, FOIA requires 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.” 29 Del. C. § 10004(e)(2). For special meetings, FOIA allows a public body to post notice “as soon as reasonably possible, but in any event no later than 24 hours of such meeting.” Id. § 10004(e)(3). “The public notice of a special meeting . . . shall include an explanation as to why the [normal 7-day notice] could not be given.” Id.
According to the School District, snow resulted “in the closing of all schools from February 17 to February 21 . . . The heavy snow caused the collapse of the roof at the Leasure Elementary School. The need to address the roof collapse, and relocate the Leasure students, pushed to the ‘back burner’ the rescheduling of the February 26, 2003 meeting with the consultants.”
To notice a special meeting in less than seven days, FOIA “requires only a reason, not a detailed factual basis, why the seven-day requirement could not be met.” Att’y Gen. Op. 96-IB15 (May 10, 1996). We determine that the School District satisfied that requirement in the notice of the February 26, 2003 meeting by explaining that the consultants had not been able to meet during the prior week because of heavy snow, and were scheduled to leave the State the evening of February 26, 2003.
B. Executive Session
We have reviewed in camera the minutes of the executive session on February 26, 2003, and are satisfied that the matters discussed by the School District fell within the personnel exception for executive session under FOIA.
For the foregoing reasons, we determine (1) that the School District did not violate FOIA by posting notice of the February 26, 2003 special meeting less than seven days in advance; and (2) that the School District did not violate FOIA by going into executive session because it discussed personnel matters authorized by law.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Keith R. Brady
Assistant State Solicitor
cc: The Honorable M. Jane Brady
David H. Williams, Esquire
Phillip G. Johnson