Several violations were alleged with respect to two executive sessions and a vote, including: 1) whether the Town of South Bethany improperly cited potential litigation as justification for two executive sessions; 2) whether the review of non-public records in executive session was appropriate, and 3) whether a vote after one executive session had sufficiently stated the subject matter.
DECIDED: The discussion of two matters under the “pending and potential litigation” exemption at the November 8, 2018 executive session violated FOIA, as there was insufficient objective indicia of a tangible threat of litigation in either matter. With regard to the first matter, this Office recommended an open session be scheduled for discussion. This Office determined that the second matter was properly discussed in executive session, though not under the justification cited, because it involved personnel actions. No remediation for that portion of the executive session was recommended. An executive session held on January 29, 2019 was justified by the evidence of potential for litigation. The discussion of certain non-public records was found appropriate under 29 Del. C . 10004(b)(6).