PRINT VERSION: Attorney General Opinion No. 24-IB51
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 24-IB51
November 26, 2024
VIA EMAIL
Janet Todd
janetmtodd@yahoo.com
RE: FOIA Petition Regarding the Town of Greenwood
Dear Ms. Todd:
We write in response to your correspondence alleging that the Town of Greenwood violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”). We treat this correspondence as a petition (“Petition”) for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the Town Council’s executive session at its August 27, 2024 meeting was appropriately held under Section 10004(b)(4). However, we find that the Town Council violated FOIA by holding a “meeting” as defined by FOIA through email communications without satisfying FOIA’s open meeting requirements.
BACKGROUND
The Petition alleges that the Town Council violated FOIA in addressing issues with your employment with the Town. Prior to the August 27, 2024 Special Meeting of the Town Council, you allege that you asked the Town’s employment attorney if the scheduled executive session on the agenda pertained to you and if so, you asked that the discussions be held in public. You state that the attorney advised you did not have to attend, but you later learned that this session involved discussions about you. After the meeting, you assert that the employment attorney emailed about your performance plan with all members of Council. You state that the attorney later asserted, at the time this plan was presented to you, that all members had seen and agreed on the performance plan. Based on these facts, you allege that FOIA was violated because: 1) the Council’s executive session was improper, as you requested these discussions be public; 2) the executive session documents were typed by a council member’s relative; and 3) a quorum of the Council improperly discussed public business over email.
On November 6, 2024, the Town Solicitor responded to the Petition on the Town’s behalf, including affidavits from the Mayor and another councilmember who attended the relevant meetings, both attesting to their belief that the statements in the Response are accurate (“Response”). The Town attached a copy of the August 27, 2024 Special Meeting agenda in which a personnel matter related to you was discussed. The agenda including the executive session item for “strategy sessions and advice or opinion from an attorney-at-law regarding pending or potential litigation and to discuss personnel matters in which the names, competency, and abilities of individual employees will be discussed.”[1] Due to the potential for litigation, the Town asserts that this executive session could not be publicly held. The Town states that it received a letter from your attorney in July 2024, which the attorney was “increasingly concerned with the hostile work environment and retaliation” you were facing.[2] The Town also provided a copy of the follow-up letter from counsel sent in October 2024, reasserting these claims against the Town and stating he “would be happy to confer with [the Town’s employment attorney] on these matters to avoid litigation.”[3] The Town asserts that discussion of your employment performance and potential litigation were inextricably intertwined, and holding such discussions publicly would jeopardize the Town’s litigation position; as such, the Council held this executive session under Section 10002(b)(4) for strategy sessions related to potential litigation in consultation with its employment attorney. Regarding the executive session records purportedly typed by a non-member, the Town states that this record was in fact drafted by a member of council.
Regarding your third claim, the Town acknowledges the attorney emailed all Council regarding the performance plan, soliciting comments. The Town asserts that although two members replied to all members, those comments were not substantive. While the Town states it does not believe it violated FOIA in this regard, the Council will schedule an agenda item at a future meeting to formally review and vote on the relevant performance plan in open session. The Town states that this open session discussion, at this stage, would not involve much, if any, legal strategy discussion.
DISCUSSION
The public body has the burden of proof to “justify a decision to meet in executive session or any failure to comply with [FOIA].”[4] In certain circumstances, a sworn affidavit may be required to meet that burden.[5] As a preliminary matter, the Petition’s claim regarding the author of the executive session materials concerns a subject that is not addressed by the FOIA statute. As such, our Office lacks the authority to address this claim.[6]
The Petition challenges the propriety of the August 27, 2024 executive session. FOIA requires that the meetings of public bodies, with limited exceptions, be open to the public. Public bodies, with proper notice of the intent to enter an executive session on its agenda, may hold an executive session to discuss one of the nine topics that are outlined in the statute.[7] Discussions about personnel matters in which the names and competencies of an employee are discussed may be held in executive session, if the employee does not request “that such a meeting be open.”[8] The Town acknowledges you requested any discussions about your job performance be public but argues this executive session was proper under the other applicable exemption, Section 10004(b)(4).
Section 10004(b)(4) allows an executive session for “[s]trategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.”[9] In considering whether an invocation of potential litigation is appropriate, we must look at the public body’s knowledge at the time it asserted the exemption.[10] Potential litigation “must be likely or reasonably foreseeable.”[11] “When determining whether litigation is ‘likely or reasonably foreseeable,’ the public body should look for objective signs that litigation is coming.”[12] The “potential litigation exception for executive session applies only when there is a ‘realistic and tangible threat of litigation’ based on ‘objective factors.”’[13] These signs may include factors such as a “written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow.”[14] Other indications may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue.[15]
In this case, to prove potential litigation, the Town stated, under oath, that the July 2024 letter indicated your attorney alleged claims of hostile work environment and retaliation against the Town. Further, the Town provided sworn statements that this discussion of potential discipline and the implications on future litigation were intertwined and would have adversely affected the Town’s litigation position if they occurred publicly. Based on this evidence, we find that the executive session was appropriately held under Section 10004(b)(4) to discuss litigation strategy.
The remaining claim is regarding the emails about your performance plan. “[S]erial telephone, email or other electronic communications among members of a public body may amount to a meeting of the public body.”[16] “It is the nature, timing, and substance of the communications which together may turn serial discussions into a constructive quorum.”[17] For example, “a public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body ‘to receive and comment on other members’ opinions and thoughts, and reach consensus on action to take.’”[18] It is further required that the communications involve “‘an active exchange of information and opinions’ as opposed to ‘the mere passive receipt of information.’”[19] The members’ exchanges cannot supplant a public meeting.[20]
In this case, the Town’s employment attorney circulated a draft performance plan to all of Council and asked for the members’ comments and changes on the document.[21] One councilmember wrote back, approving the plan and another member objected to the plan and the process. The employment attorney replied to the councilmember’s concerns about the process. All councilmembers were copied on these exchanges. These exchanges went beyond the passive receipt of information and constituted an exchange of opinions about acting on public business that supplanted a meeting. Any meeting of a quorum of Council must satisfy the open meeting requirements of FOIA, including notice and the opportunity for public comment. These email exchanges did not satisfy FOIA’s open meeting requirements. Accordingly, we must find that these emails resulted in a constructive quorum of council meeting privately, which violated FOIA.
When this Office finds a violation of the open meeting requirements, we may recommend remediation if appropriate.[22] The “remedy of invalidation is a serious sanction and ought not to be employed unless substantial public rights have been affected and the circumstances permit the crafting of a specific remedy that protects other legitimate public interests.”[23] In these circumstances, the Town discussed your performance plan privately, despite the fact you had asked for any discussions about your job performance to occur in public. The Town, in its Response, committed to hold a public meeting to discuss and vote on the performance plan, which was the subject of this email exchange, in open session, as you requested. We recommend that the Town follow this course of action as remediation.
CONCLUSION
For the reasons set forth above, we conclude that the Town Council’s executive session at its August 27, 2024 meeting was appropriately held under Section 10004(b)(4). However, we find that the Town Council violated FOIA by holding a “meeting” as defined by FOIA through email communications about your performance plan without satisfying FOIA’s open meeting requirements.
Very truly yours,
/s/ Dorey L. Cole
__________________________
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
__________________________
Patricia A. Davis
State Solicitor
cc: James P. Sharp, Town Solicitor
[1] Response.
[2] Id.
[3] Id.
[4] 29 Del. C. § 10005(c).
[5] Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
[6] 29 Del. C. § 10005(e) (“Any citizen may petition the Attorney General to determine whether a violation of this chapter has occurred or is about to occur.”).
[7] 29 Del. C. § 10004.
[8] 29 Del. C. § 10004(b)(9).
[9] 29 Del. C. § 10004(b)(4).
[10] See Del. Op. Att’y Gen. 07-IB21, 2007 WL 4732804, at *4 (Oct. 22, 2007) (“In reviewing a public body’s decision to withhold records, out Office ‘must of necessity limit the scope of [our] inquiry to an appropriate time frame’ and our ‘review properly focuses on the time the determination to withhold is made.”’) (quoting Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991)).
[11] ACLU v. Danberg, 2007 WL 901592, at *4 (Del. Super. Mar. 15, 2007) (adopting this Office’s test for determining the applicability of the “potential litigation” exemption).
[12] Id.
[13] Del. Op. Att’y Gen. 02-IB17, 2002 WL 31031224, at *9 (Aug. 6, 2002).
[14] ACLU, 2007 WL 901592, at *4.
[15] Id.
[16] Del. Op. Att’y Gen. 17-IB09, 2017 WL 2345247, at *5 (Apr. 25, 2017) (citing Del. Op. Att’y Gen. 03-IB11, 2003 WL 21431171, at *4 (May 19, 2003); see also See GO4PLAY, Inc. v. Kent Cnty. Bd. of Adjustment, 2022 WL 2718849, n. 28 (Del. Super. July 12, 2022) (“There were no votes cast or exchanged during the email exchange. The members, for the most part, affirmed what they had already stated in the public hearing with the parties present, and the emails show no active exchange of ideas. . . . Therefore, the email exchange was not a means of circumventing FOIA.”) (citing Del. Op. Att’y Gen. 10-IB17, 2010 WL 5186152 at *3 (Dec. 15, 2010) and Tryon v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990)).
[17] Del. Op. Att’y Gen. 06-ID20, 2006 WL 2724980, at *2 (Sept. 11, 2006) (citation omitted).
[18] Id. (quoting Del. Op. Att’y Gen. 03-IB11, 2003 WL 21431171, at *4 (May 19, 2003)).
[19] Del. Op. Att’y Gen. 06-IB16, 2006 WL 2435111, at *4 (Aug. 7, 2006) (quoting Del. Op. Att’y Gen. 03-IB11, 2003 WL 21431171, at *5).
[20] Del. Op. Att’y Gen. 21-IB17, 2021 WL 3609560, at *2 (July 23, 2021) (“Thus, we find that this vote was not a poll to understand whether the Council was ready to discuss and vote on this issue at a subsequent meeting like the facts of the Tryon case; this vote by a series of emails and calls actually supplanted a meeting in which the Council could consider and vote on whether to designate this Juneteenth as a holiday.”).
[21] Petition.
[22] Del. Op. Att’y Gen. 21-IB17, 2021 WL 3609560, at *3; see also Del. Op. Att’y Gen. 05-IB15, 2005 WL 2334344, at *4 (Jun. 20, 2005).
[23] Ianni v. Dep’t of Elections of New Castle Cnty., 1986 WL 9610, at *7 (Del. Ch. Aug. 29, 1986).
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