October 13, 2004
New Castle County/Civil Division

Mr. Jim Parks
Editor
Delaforum.com
2411 Berwyn Road
Wilmington, DE 19810-3524
RE: Freedom of Information Act Complaint Against Brandywine School District

Dear Mr. Parks:
On or about July 29, 2004, you filed with our office a Freedom of Information Act (AFOIA@) complaint, alleging that the Brandywine School District (the ADistrict@) violated the public record requirements of FOIA by failing to provide you with copies of proposed or pending contracts and other documents between the District and the Brandywine Education Association (ABEA@) teachers= union prior to final ratification of a contract by the Board of Education. You further contend that the District violated the open meeting requirements of FOIA by failing to discuss the preliminary contracts and/or proposals in public session.
By letter dated August 3, 2004, Deputy Attorney General W. Michael Tupman requested the District to respond to your complaint. The District=s response was filed by Staff Attorney Ellen Marie Cooper on August 16, 2004.
Based upon the information we have received, we conclude that the District did not violate the provisions of FOIA with regard to the issues you present, either as to public records disclosure or open meetings.
1. Factual Background.
Based upon information supplied by you and the District, it appears that the District has, throughout much of 2004, been engaged in negotiations and collective bargaining with BEA in an attempt to reach a new collective bargaining agreement to replace an agreement set to expire on August 31, 2004. The District Board of Education met in executive session on at least two occasions, March 8, 2004 and July 12, 2004 to discuss, inter alia, negotiations with BEA. No final agreement has been reached. The District has objected to publication of the requested interim documentation , but does agree to produce the new agreement and other public documents once the final agreement has been ratified by both sides.
2. Documents Pertaining to Collective Bargaining and Negotiations.
FOIA provides for public access by Delaware citizens to Apublic records.@ 29 Del.C. ‘10003. APublic Records@ are broadly defined at ‘10002(g) as information held by a public body
Arelating in any way to public business.@ However, the statute provides for certain exceptions and limitations to the scope of public records. It provides, in pertinent part: A[f]or purposes of this chapter, the following records shall not be deemed public:
(8) Any records involving labor negotiations or collective bargaining.@
29 Del. C. ‘10002(g)(8).
The Aany records@ language of this exception to FOIA appears clearly to encompass the records sought hereBthat is, preliminary or draft versions of potential contracts or other documents relating to strategies or proposals by the District in the context of its collective bargaining with BEA.
Our office previously considered another case in which a FOIA complaint was lodged against a school district for failure to disclose minutes of executive sessions during which discussions were held regarding collective bargaining issues . Attorney General Opinion 01-IB03, 2001 WL 1593103 (February 16, 2001). In that case, we stated that the district was authorized to hold such discussions in executive session under ‘10002(g)(8) and that minutes memorializing these discussions need not be produced as the contents, including long-term strategies, Awould unfairly disadvantage and adversely affect the district.@ A.G. Op. at p. 3.
The purpose behind the negotiation/collective bargaining exception from public records is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Negotiations need not be adversarial, as your request suggests, for this interest to exist. Each side typically has a strategy to obtain the best possible result, and, in the cases of parties which regularly engage in negotiations or collective bargaining, such as the District and BEA here, long-term strategies. The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Such disclosure, we found in A.G. Op. 01-IB03, Awould unfairly disadvantage and adversely affect@ the party subject to disclosure.
3. Executive Session.
We also do not find that the District has violated FOIA by holding its discussions regarding collective bargaining and proposals for a collective bargaining agreement in executive session. The AOpen Meetings@ provision of FOIA allows for executive sessions, closed to the public for, inter alia, AStrategy sessions . . . with respect to collective bargaining . . . 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, from the facts presented here, that the District has an interest in maintaining its bargaining position vis a vis the BEA in their efforts to reach a new agreement. An open meeting, during which the District would discuss its goals and strategies in public would have an Aadverse effect@ on that position.
In addition, A.G. Op. 01-IB03 found that since documents pertaining to collective bargaining were exempt from FOIA disclosure pursuant to ‘10002(g)(8), Alogically, FOIA also permits a public body to go into executive session to discuss labor negotiations or collective bargaining because the discussion of those issue may disclose the contents of documents exempted from disclosure under FOIA. See also ‘10004(a)(6).
We do believe, and the District appears to agree, that the contents of a final bargaining agreement, agreed upon by both negotiating parties, should be presented to the Board as a matter of public record and deliberated upon in public session.
Finally, while it appears that the Executive Sessions were properly noticed, according to agendas submitted with the District=s August 16, 2004 response, the District should consider, in the future, more specifically identifying the subject of the ANegotiations@ which are to be discussed in Executive Session. See A.G. Op. 01-IB03 at p. 4 (reasons for going into executive session should be Aclearly delineated@).
CONCLUSION
For the foregoing reasons, we conclude that the District did not violated the provisions of the Delaware Freedom of Information Act, by holding meetings regarding collective bargaining and negotiations in Executive Sessions and by refusing to release, as public documents, documents created for and arising out of those meetings.
If you have any questions, please do not hesitate to contact our office.
Very truly yours,
Stephani J. Ballard
Deputy Attorney General
APPROVED:
____________________
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady, Attorney General
Mr. Philip Johnson, Opinion Coordinator
Ellen Marie Cooper, Esquire

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