OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 15-IB11
December 11, 2015
Stephen P. Norman, Esquire
The Norman Law Firm
303838 Vines Creek Rd., Unit 3
Dagsboro, DE 19939
Re: FOIA Complaint Concerning the Brandywine School Board
Dear Mr. Norman:
On August 26, 2015, the Delaware Department of Justice (“DOJ”) received your letter complaint requesting our determination pursuant to the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), of whether the Brandywine School Board (the “Board”) violated the FOIA open meeting requirements in its consideration and decision regarding a student disciplinary matter. We treat your letter as a petition for a determination of whether a violation of FOIA has occurred or is about to occur. 29 Del. C. §10005(e). Our determination is set forth herein.
In June 2015, Mr. Norman requested that a proposal to expunge a student’s discipline record be brought before the Board at the July 20, 2015 meeting, if not before. According to counsel for the Board, the discussion about this requested expungement was not held before the July 20, 2015 scheduled Board meeting due to FOIA’s open meeting requirements.
On July 20, 2015, the Board held a monthly school board meeting. Counsel for the Board has represented and Mr. Norman has not disputed that the notice and agenda for the public meeting were posted on the District website at least seven days in advance of the meeting per the requirements of FOIA. The Board also posted a separate attachment for the “Executive Session Agenda.” The executive session agenda noted that the Board would discuss (i) Personnel Matters; (ii) Student Matters; and (iii) Legal Matter”.
Counsel for the Board represents that the request regarding student record expungement was discussed under the heading of “Legal Matters” due to Mr. Norman’s threats of litigation. The Board did not produce any independent evidence of such threats. The Board recorded minutes for both the July 20, 2015 executive session and regular session. According to the executive session minutes, the Board voted unanimously to enter executive session and discussed: 1) Personnel; 2) Negotiations; and 3) Student Matters before coming out of executive session. According to the regular session minutes, the Board voted in public on Personnel Matters and Student Matters as discussed in executive session.
On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, “Steve. Given the strength of the District’s position it declines your client’s proposal to clear his record.”
The Petition alleges that the Board violated FOIA in denying the request to expunge the student record without taking official action in regular session. The Petition also alludes to concerns regarding the issuing of agendas and general FOIA violations during the executive session but provides no specific complaints. In his Petition, Mr. Norman writes, “I have my concerns whether other violations of FOIA may have occurred in issuing the agenda and at the executive session itself.” However, Mr. Norman has not identified any of these concerns with additional specificity.
BOARD’S Response to the Allegations
The Board argues that there was no vote in executive session but states that the Board discussed whether a motion should be made as to opening discussion with Mr. Norman regarding his client’s request. The Board states that no motion was made in executive or regular session, and therefore, because no motion was made, the Board determined that it would not negotiate with Mr. Norman regarding his client’s request.
“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].” 29 Del. C. § 10004(a). “Public body” includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making “reports, investigations or recommendations” to a public body. 29 Del. C. § 10002(c).
A public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.” 29 Del. C. § 10004(c). Sections 10004(e) and (f) of Title 29 set out the requirements for meeting notices, agendas and minutes.
FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting. See 29 Del. C. § 10002(a). If the public body intends to go into executive session, it must so indicate in the agenda. See id. Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public. Id. Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op. Att’y Gen. 06-IB12, Del. Op. Att’y Gen. 05-IB29, Del. Op. Att’y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.
The Board does not have any procedures for considering a student’s request to expunge his or her record. The process is discretionary. Counsel for the Board argues that there was no vote in executive session. The statute does use the term “vote,” but we take a practical view and look at whether a matter was “decided,” even if the body avoids a vote. The Board sent a letter “declining” a proposal; this acknowledges that a decision was made. Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over. In any event we cannot say that the decision was made publicly. We believe the import of the statute’s language that “all voting on public business must take place at a public meeting and the results of the vote made public” is that the public should be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session. Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.
The Petition alleges that the Board may have committed other FOIA violations when issuing the agenda or conducting the executive session. As previously noted, the agendas for the executive and regular sessions were posted within the time statutorily mandated by FOIA. The Board provided sufficient notice for the executive session. The Board’s description of the topics to be discussed in executive session was sufficient. See Del. Op. Att’y Gen. 15-IB10; See also Common Cause of Delaware v. Red Clay Consol. Sch. Dist. Bd. of Educ., 1995 WL 733401, at *4 (Del. Ch. Dec. 5, 1995). The Board was only required to disclose the purpose of the executive session in the agenda. Id. The Board did so. The Board voted to go into executive session and entered into executive session for one, or more, of the allowable reasons. See 29 Del. C. § 10004(b), Del. Op. Att’y Gen. 06-IB12. The minutes of the executive session are sufficient. Common Cause of Delaware, at *4. Based on the evidence provided, we find no additional FOIA violations in connection with the notice or conduct of the meeting.
REMEDIATION AND CONCLUSION
We find that the aforementioned Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA. The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.
Very truly yours,
/s/ Joanna S. Suder
Joanna S. Suder
Deputy Attorney General
cc (via email): James McMackin, Esq., Counsel for Brandywine School Board
/s/ Aaron Goldstein
Aaron Goldstein, State Solicitor
 The Factual Background Section of this Opinion refers to your communications as made by “Mr. Norman” for ease of future reference by third parties.
 See Brandywine School District Code of Conduct, available at http://www.brandywineschools.org/cms/lib04/DE01000691/Centricity/Domain/2100/code%20of%20conduct%202014.pdf.
 We are cognizant that discussions dealing with student records and student discipline may be protected under the Family Education and Privacy Act (“FERPA”). 20 U.S.C. § 1232g; 34 CFR Part 99. We have noted that “FERPA provides that federal funds will be denied to any educational entity that has a ‘policy or practice’ of releasing ‘any personally identifiable information in education records’ without the written consent from a minor student’s parents.” Del. Op. Att’y Gen. 10-IB10 (2010). “Education records” are any materials that “contain information directly related to a student” and that “are maintained by an educational agency or institution ….” 20 U.S.C. § 1232g(a)(4)(A). Additionally, pupil files are exempt from FOIA pursuant to 29 Del. C. § 10002(l)(1), § 10002(l)(6) and 14 Del. C. § 4111(a). However, in the present case, the matter could have been voted on in regular session without disclosing personally identifiable information. This could be done by, for instance, referencing a number or initials to identify the student in regular session, or simply stating that a discussion was held during executive session regarding a request for expungement and then voting in regular session to accept or deny the request.