January 12, 2005
Civil Division – New Castle County
05-IB02
Mr. John A. DeGhetto
President
Newark Lodge #4
Fraternal Order of Police
P.O. Box 475
Newark, DE 19715

Re:   Freedom of Information Complaint
         Against City of Newark

Dear Mr. DeGhetto:
On October 8, 2004, our office received your Freedom of Information Act
(“FOIA”) complaint alleging that the City of Newark (the “City”) violated FOIA by not
providing minutes of an executive session held on August 9, 2004. By letter dated
October 13, 2004, we asked the City to respond to your complaint. We received the
City’s response on October 29, 2004. We received a supplemental response from the
City on November 17, 2004, including a copy of the executive session minutes that we
reviewed in camera.
On August 9, 2004, at the close of its regularly scheduled meeting, the Mayor and
Council of the City went into executive session for the purpose of discussing personnel
related issues. Notice of the August 9, 2004 meeting, including notice of a “[r]equest for
Executive Session re Personnel” was timely and properly published. Specifically, the
executive session was called in order for Council to evaluate the performances of the City
Secretary and the City Solicitor to determine whether the City Secretary should be given
a raise and whether the City Solicitor and Deputy Solicitor should have their hourly rates
for legal services increased. After the discussion concerning the performance of these
individuals, Council ended the executive session and reconvened the public meeting. At
that time, with no further public discussion, Council voted unanimously to increase the
annual salary of the City Secretary and to increase the hourly rate paid to the City
Solicitor and the Deputy Solicitor.
On September 2, 2004 you wrote to the City Secretary requesting a copy of the
minutes of the executive session held on August 9, 2004. By letter dated September 20,
2004, the City Secretary denied your request based upon the recommendation of the City
Solicitor.
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 further 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 “[p]ersonnel matters in which the names, competency and abilities of
individual employees . . . are discussed, unless the employee . . . requests that such a
meeting be open.” Id. §10004(b)(9). Additionally, FOIA exempts from the definition of
“public record” any “record of discussions held in executive session pursuant to
subsection (b) and (c) of Section 10004 of this title.” 29 Del.C. §10002(d)(10). Section
10004(f), however, provides that this exemption applies only “so long as public
disclosure would defeat the lawful purpose for the executive session, but no longer.”
Legal Analysis
In your complaint you have acknowledged that personnel records, the disclosure
of which would constitute an invasion of personal privacy, are not deemed public records
under FOIA. See 29 Del.C. §10002(g)(1). Likewise, you do not dispute that a public
body may call for an executive session in order to discuss personnel matters pursuant to
29 Del.C. §10004(b)(9). Still, you seek the minutes of the executive session involving
discussions related to the City Secretary and the City Solicitor and Deputy Solicitor “after
information relating to specific job performance/qualifications of the employees in the
noted positions is redacted by the City.”
As the City noted in its response to the complaint “[t]he Solicitor and Deputy
Solicitor are not salaried Newark employees, but serve as contracted professionals.” The
City further acknowledges that “[d]uring the executive session in this case, the
competency, qualifications, strengths and weaknesses of the City Secretary and City
Solicitor were discussed.” It then argues that “[t]he fact that the Secretary is a salaried
public employee and that the Solicitor performs legal work for a public body does not
suggest that either individual has lost his or her right to privacy when candidly evaluated
by the public employer.” The City concludes that the minutes taken during the executive
session evaluations of the City Secretary and the City Solicitor are not public records
under FOIA and should not be disclosed because to do so would infringe on these
individuals’ personal privacy.
As the City has acknowledged, the City Solicitor and the Deputy Solicitor are not
public employees. Rather, they are independent contractors hired by the City to provide
professional legal services. This office has previously held that the “personnel”
exception to the open meeting provisions of FOIA does not apply to independent
contractors but only public employees. See Att’y Gen. Op. 02-IB17 (August 6, 2002).
Similarly, we find that since the City Solicitor and Deputy Solicitor are not employees of
the City, any records relating to their provision of legal services are not exempt from
disclosure under the “personnel file” exemption of FOIA. Therefore, the City erred when
it went into executive session to discuss its contractual arrangements with the City
Solicitor and Deputy Solicitor. For this reason, the portions of the minutes of Council’s
executive session pertaining to those discussions must be provided.
With respect to the discussions relating to the salary of the City Secretary, we find
that the City properly called an executive session pursuant to 29 Del.C. §10004(b)(9) and
that the minutes of the executive session relating to those discussions are not public
records pursuant to 29 Del.C. §10002(g)(1). While a public body must try to redact
exempt information from its records to make non-exempt information available to the
public, we have reviewed the minutes of the executive session in camera and find that the
discussions pertaining to the City Secretary are not subject to redaction since the minutes
relate to the City Secretary relating entirely to her performance, abilities and
compensation. As such, their release would constitute an invasion of her personal
privacy thereby defeating the lawful purpose for which the executive session was called.
See 29 Del.C. §10004(f)
Conclusion
For the foregoing reasons, we find that the City did not violate the executive
session or public records requirements of FOIA as they apply to the City Secretary. We
further find that with respect to the discussions relating to the City Solicitor, Deputy
Solicitor and Council improperly held an execution session for a purpose not authorized
by statute. Therefore, we instruct the City to redact from the minutes of the Council’s
executive session all discussions pertaining to the City Secretary and to provide you with
a copy of the redacted minutes.
Very truly yours,
Keith R. Brady
Assistant State Solicitor
APPROVED:
Malcolm S. Cobin
State Solicitor
Cc:
The Honorable M. Jane Brady
Phillip G. Johnson, Opinion Coordinator

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