Mr. Joseph M. Shetzler, III
President, Polytechnic Education Association
823 Walnut Shade Road, Box 97
Woodside, DE 19980
Re: Freedom of Information Act Complaint Against Polytech School
Dear Mr. Shetzler:
Our Office received your Freedom of Information Act ("FOIA") complaint on January 4, 2001. You allege that the Polytech School District ("the School District") violated the open meeting requirements of FOIA by failing to post complete agendas for eight meetings. You also allege that the School District violated the public record requirements of FOIA by not honoring your request (by letter dated October 27, 2000) for copies of the minutes of all executive sessions held since January 1, 2000. You expressed particular concern that the School District may have discussed collective bargaining issues in executive session in violation of FOIA.
By letter dated January 4, 2001, we asked the School District to respond
to your complaint within ten days. The School District's attorney asked
for an extension of time due to illness in her family, which we granted.
We received the School District's response on January 30, 2001.
The parties do not dispute that the agendas for the May 8, June 12, July 10, August 14, September 11, October 9, November 13, and December 18, 2000 stated that the School District would go into executive session to discuss: "Personnel matters in which names, competencies and abilities of individual employees are discussed." According to the School District, it "considers collective bargaining negotiations to be part of personnel issues" and therefore within FOIA's authorization for executive session for "personnel matters," 29 Del. C.§ 10004( b)(9).
FOIA authorizes a public body to go into executive session to discuss any of nine matters, including "the content of documents, excluded from the definition of 'public record in Section 10002 of this title where such discussions may disclose the contents of such documents." 29 Del. C. § 10004(b)6). In Att'y Gen. Op. 96-IB30 (Sept. 25, 1996), this Office determined that it was proper for the school board to meet in executive session to consider scholarship applications, because the board had to review academic transcripts and parents' tax returns, which documents were exempt from disclosure under FOIA.
We think the same rationale applies here with regard to discussions about labor negotiations and collective bargaining agreements. FOIA exempts from the definition of a "public record" any "records involving labor negotiations or collective bargaining." 29 Del. C.
§ 10002(d)(8). Logically, FOIA also permits a public body to go into executive session to discuss labor negotiations or collective bargaining because the discussion of those issues may disclose the contents of documents exempted from disclosure under FOIA. Therefore, we do not find that there was a violation of FOIA to have held those discussions in executive session.
However, because the School District inaccurately equated labor negotiations or collective bargaining with "personnel matters," it listed the wrong FOIA exemption for executive session in the agendas for the eight meetings at issue.
In its response to your complaint, the School District has pledged in the future to distinguish executive sessions to discuss labor negotiations/collective bargaining from executive sessions to discuss personnel matters in the agendas for its meetings. We think that will be an appropriate remediation. FOIA authorized the School District to go into executive session to discuss labor negotiations or collective bargaining, and no purpose would be served by directing the School District to re-notice the matters discussed in earlier executive sessions since the School District would be allowed to discuss collective bargaining issues in an executive session outside of the public view.
B. Executive Session Minutes
FOIA exempts from the definition of a "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 not longer."
According to the School District, when "collective bargaining negotiations are being addressed, strategies, including long term strategies and philosophies of the District regarding negotiations, are frequently included. Thus, to disclose those summaries, both while negotiations are continuing and during periods of time between negotiations, would unfairly disadvantage and adversely affect the District."
We find the School District's explanation for withholding the executive session minutes you requested to be reasonable, and we will not second-guess the School District's discretionary decision absent a showing of bad faith or disparate treatment.
For the foregoing reasons, we find that the School District violated the open meeting requirements of FOIA by not clearly delineating, in the agendas for its meetings, the reasons why it would be going into executive session. In the future, the School District must specify which of the nine exemptions it is invoking under Section 10004(b), and should not equate labor negotiations/collective bargaining agreements with personnel matters.
We find that the School District did not violate the public records
requirements of FOIA by withholding the minutes of executive sessions you
requested. The School District articulated reasonable and legitimate reasons
why it exercised its discretion not to make those documents available.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
cc: The Honorable M. Jane Brady
Catherine T. Hickey, Esquire
Phillip G. Johnson, Opinion Coordinator
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