November 4, 2002
Civil Division-Kent County
Mr. Daniel J. Kramer
8041 Scotts Store Road
Greenwood, DE 19950
Dear Mr. Kramer:On October 10, 2002, our Office received your complaint under the Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), alleging that the Sussex County Council ("the Council") violated FOIA by meeting in executive session on September 10, 2002 and then not providing you with a copy of the minutes of that executive session.
By letter dated October 11, 2002, we asked for the Council's response, which we received on October 23, 2002. The agenda for the September 10, 2002 Council meeting (which was posted seven days in advance, in accordance with FOIA) listed "Executive Session - Land Acquisition." The County provided us with a copy of the minutes of that executive session for our in camera review.
FOIA authorizes a public body to go into executive session to discuss "[p]reliminary decisions on site acquisitions for any publicly funded capital improvements." 29 Del. C.
FOIA exempts from disclosure "any records of discussions held in executive session pursuant to subsections (b) and (c) of Section 10004 of [FOIA]." 29 Del. C. § 10002(d)(10). Section 10004(f) of FOIA requires a public body to maintain minutes of executive sessions, which "may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but not longer."
Our in camera review of the minutes of the September 10, 2002 executive session confirms
that the Council discussed the potential purchase of properties by the County, which is an authorized subject for discussion in executive session under FOIA. See Government Land Bank v. General Services Administration, 671 F.2d 663, 665 (1st Cir. 1982) (FOIA "protects the government when it enters the marketplace" to purchase real property "as an ordinary commercial buyer or seller"). Our review also confirms that the Council did not vote or reach a consensus decision on the purchase of any particular parcel of property in violation of FOIA.
In denying you access to the minutes of that executive session, the Council explained that "the matters addressed in the Executive Session are not concluded and negotiations are ongoing." We agree that disclosure of the minutes before the purchase of property "would defeat the lawful purpose for the executive session." 29 Del. C. § 10004(f). See Att'y Gen. Op. 01-IB03 (Feb. 16, 2001) (school district could withhold minutes of executive session concerning labor negotiations "while negotiations are continuing and during periods of time between negotiations").
At some point after the County has purchased property, the minutes of prior executive sessions regarding the purchase of the property may become subject to FOIA because disclosure would no longer "defeat the lawful purpose for the executive session." 29 Del. C § 10004(f). At that time, you could renew your request.
For the foregoing reasons, we determine that the Council did not violate FOIA when it met in executive session on September 10, 2002 for the authorized purpose of discussing preliminary site acquisition, and that the Council did not violate the open records requirements of FOIA by withholding the minutes of that executive session at this time.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin, Esquire
cc: The Honorable M. Jane Brady
Dennis L. Schrader, Esquire
Phillip G. Johnson, Opinion Coordinator