January 28, 2008
Ms. Pamela Holmes
150 Karlyn Drive
New Castle, DE 19720
RE:  Freedom of Information Act Complaint Against
Colonial School District Board of Education
Dear Ms. Holmes:
On November 8, 2007, the Delaware Department of Justice (“DDOJ”) received
your complaint alleging that the Colonial School District Board of Education (“the
School Board”) violated the open meeting requirements of the Freedom of Information
Act, 29 Del. C. Ch. 100 (“FOIA”), by not allowing you to speak at a public meeting on
October 9, 2007 about your nephew’s expulsion by the School Board.
By letter dated November 29, 2007, the DDOJ asked the School Board to respond
to your complaint in writing by December 10, 2007. We received the School Board’s
response by facsimile on December 10, 2007. We asked the School Board for additional
information, which we received by December 19, 2007.
According to the School Board, “Ms. Holmes attempted to speak [at the School
Board’s October 9, 2007 public meeting] concerning the expulsion of her [nephew]. She
was free to speak at the meeting regarding other subjects, and was invited to do so twice.
Ms. Holmes was not, however, permitted to address the pending expulsion of her
[nephew]. The pending expulsion was not a matter of public concern which would have
required the expulsion to be placed on the agenda”.
On October 2, 2007, the School Board posted notice of a meeting to be held on
October 9, 2007. The notice listed an executive session (closed to the public) starting at
5:30 p.m. to discuss “Student Discipline, Specific Personnel Matters, and Legal issues”
followed by a special workshop session (open to the public) and a regular session (open
to the public) starting at 7:00 p.m.
The agenda for the October 9, 2007 public session listed for discussion “X. Public
Comment. This is an opportunity for members of the public to talk to the Board of
Education about items on the agenda or other matters of general interest to the district.
Those who wish to make comments are asked to complete a Public Comment Form. The
Board welcomes comments but will not respond at the meeting. Staff will be directed to
gather information and follow-up with the presenter as necessary. Comments will be
recorded in the process”.
The minutes of the public session of the October 9, 2007 meeting reflect that the
“Board considered the recommendations of the hearing officers regarding the expulsion
of Students #08-101 and #08-102, who were discussed in Executive Session.” The Board
then voted on the disciplinary actions. The minutes reflect that later in the public session
the Board heard public comments from three citizens.
The Board provided the DDOJ with a transcript of the public comment period
from the October 9, 2007 meeting. The transcript shows that the Board did not allow you
to speak about your nephew’s expulsion.
Dr. Meney then called on Ms. Holmes, who responded.
Dr. Meney asked if he could ask her a question, “Is this
related to an individual child?’ Mrs. Holmes responded
in the affirmative. “Did you read the back of this [the public
comment form]? She responded that she didn’t. “We will
not enter into discussions about specific students because
of privacy rights. The Board will not enter into a discussion
related to a particular child …. The Board will not accept
anything related to a discipline case…Mrs. Holmes “So I
can’t talk to you about anything that” Dr. Meney: :You cannot
talk to us about a discipline case. The appeal process that
you might use will be explained to you, but we cannot do that”.
RELEVANT STATUTES
FOIA’s “Declaration of Policy”, 29 Del. C. §10001, provides that “citizens shall
have the opportunity to observe the performance of public officials and to monitor the
decisions that are made….” (emphasis added). To that end FOIA requires that “[e]very
meeting of all public bodies shall be open to the public except those closed” for executive
session as authorized by statute. 29 Del. C. §10004(a). Executive session is authorized for
the “hearing of student disciplinary cases unless the student requests a public session”. 29
Del. C. §10004(b)(7).
LEGAL ANAYLSIS
FOIA does not require a public body to allow members of the public to speak
during a public meeting. “There is nothing in the text of the declaration of policy or in the
open meeting provision requiring public comment or guaranteeing the public the right to
participate[.]” Reeder v. Delaware Department of Insurance, 2006 WL 510067, *12
(Del.Ch. 2006), aff’d, 931 A.2d 1007 (Del. 2006).
CONCLUSION
For the foregoing reasons, the DDOJ determines that the School Board did
not violate the open meeting requirements of FOIA by denying you the opportunity to
speak about your nephew’s expulsion during a public comment period at the October 9,
2007 meeting.
Very truly yours,
Judy Oken Hodas
Deputy Attorney General
APPROVED
__________________________
Lawrence W. Lewis
State Solicitor
cc:  The Honorable Joseph R. Biden, III
Attorney General
Richard G. Andrews
Acting Chief Deputy Attorney General
Jennifer Oliva
Deputy State Solicitor
David H. Williams, Esquire
Sarah Murray
Opinion Coordinator

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