Civics lesson: FOIA filings ARE indeed FREE!


Tonight, at the CSD board meeting, we received public comment that seemed like a veiled reference to a notion that legal opinions are not free.

Well, I agree and disagree. Here’s what I mean:

When a public body seeks legal opinion from counsel, they charge the public body. Mind you, in the case of the Christina School Board, only one board member can even ask counsel for an opinion by fiat of current board policy.


when a citizen files a FOIA with the AG to determine if a public body has acted within the confines of the open meetings law, that filing is 100% FREE. The AG then notifies the public body of the complaint and the public body has to DECIDE whether to respond via counsel to the allegation. Hopefully, public bodies vote on whether or not to respond, but I know this sometimes does not happen…whatever the reason…but the option to not respond does exist, it’s a choice.

I would believe that if the public body acted wholly within the confines of the law, then a paid response would be unnecessary and that the public body, IF given the opportunity to vote, would allow the AG to opine, again, FOR FREE and validate the public body was in the right.

Recently,. I filed a FOIA to confirm that three recent actions of our board were in compliance with the law in an act of civic responsibility. In 2 of 3 cases, we were compliant,  which was GREAT. We did hold an illegal vote (at a meeting I was not present at) at one meeting which was unfortunate, but the board has promised to not do that again.

The cost of my FOIA complaint? FREE. 

The cost of not having the board vote and all the correspondence from the sole empowered board position on the FOIA? If you want to know, FOIA it. I promise you though, it isn’t zero…or come to the next board meeting and ask me directly, and I will review legal line item expenses and the requester/subject for each legal charge in public.

I’m sure tonight’s public comment was in no way intended to suggest that Christina taxpayers should be shamed into not filing FOIAs when they cannot get relief from the public body in question.

I’m almost 100% sure that was not the message…





Update to TC readers on my filed FOIA complaints

Image result for delaware ag foia opinions

Recently, I became concerned regarding some technical aspects of 2 meetings held by our board. In total 3 items raised concerns to the level of compelling me to seek confirmation that our board acted within the law, both letter and spirit. For determination on the letter of the law, the Delaware AG office provides a complaint process that will answer an open question with regards to the letter of the law. I will summarize my concerns for the August 4th, 2015 executive session (that I was unable to attend due to a work meeting out of state) to discuss the “competencies and abilities” of the superintendent (2 concerns) and the September 17th meeting to approve the contract for the acting Superintendent (1 concern)

August 4th concerns:

First concern: A previous FOIA opinion here: appears to suggest that discussions of competencies and abilities are not completely shielded from the public thusly: 

While it is true that FOIA permits a public body to discuss personnel matters in executive session, “a public body must establish that the private discussion directly involved the consideration of an individual employee’s competency and abilities.”  Del. Op. Att’y Gen. 13-IB01, 2013 WL 2477025, at *17 (Mar. 26, 2013).  Moreover, we have previously determined that a superintendent is not the “typical employee with potentially legitimate privacy concerns about his work performance” and that the public has a substantial interest in a superintendent’s job performance.   Id., at *18.  Thus, we find that members of the public were entitled to monitor and observe the Board member’s discussion of the renewal of Mr. Burrow’s Contract, even if a portion of that discussion touched on his competency and abilities as superintendent.  Id.

To be certain CSD was protected here, I asked the AG to clarify the board acted properly by shielding the public on August 4th, and the AG opined that CSD had indeed acted properly here. Good news!

Second concern: the board held an illegal vote in executive session.  Te AG opined that CSD did violate the FOIA statute. To be clear, it is illegal to vote in executive session.

On September 17th, the board held a public meeting with an agenda item to approve the contract for the acting Superintendent.

Concern: While I was confident the item was noticed properly, I grew concerned when the actual contract to be voted on was repeatedly modified in the hours (less than 6) before the meeting. While the agenda item was never modified, the actual contract was. My concern was that this could create a violation because the public, by virtue of these last minute manipulations would be unable to effectively know that we were voting on a $743/day contract ($193,180/year rate) for our acting superintendent.  The AG opined that CSD did not violate FOIA here because the item was noticed properly despite the repeated contractual iterations being circulated to board members and the posted action item documents that continued to change up until approximately 3 hours before the meeting itself. This item is more bothersome to me. While I am thrilled that CSD receives legal insulation from the AG opinion here, I am not sure the spirit is intact or that the public wins. A Pyrrhic victory of sorts, in my opinion. I hope board leadership can better address this approach going forward and try to be more collaborative and transparent with our constituents.

Ultimately, the AG opined that CSD acted properly in 2 of 3 raised concerns which is good for the board legally, so that makes me happy from a legal standpoint. Ultimately, the overall impact of not being more forthright on the acting Superintendent’s contract  is an issue that may have an impact in the future in my opinion despite the AG’s technical opinion and I hope that board leadership will share information in the future in a manner that could eliminate the need to ask the AG to rule on questionable behaviors.

Here is the entire opinion to my FOIA complaints:


Attorney General Opinion 15-IB10

December 1, 2015


John M. Young

            Re:    August 12 and September 18 FOIA Complaints Concerning the                     Christina School Board                                                                    

 Dear Mr. Young:

The Delaware Department of Justice (“DOJ”) received your emails alleging violations by the Christina School Board (“CSB”) of the open meetings provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”). We treat these emails jointly as a petition for a determination of whether a violation of FOIA has occurred or is about to occur (the “Petition”).  29 Del. C. § 10005(e).  While we find that a violation has occurred with respect to the executive session of the August 4, 2015 meeting, the CSB meetings held on August 4, 2015 and September 17, 2015 otherwise complied with FOIA.


On August 4, 2015, the CSB held its regularly scheduled meeting.  The only substantive topic noticed for discussion was: “B. Personnel Matters Include a Discussion of the Superintendent’s Competencies and Abilities [See 29 Del C 10004 (b)(9)].”  According to the agenda and minutes of the meeting, the entirety of the CSB’s discussion was held in executive session.  The CSB did not hold a vote regarding the discussion of the superintendent during the meeting.  However, while in executive session, the CSB held a vote to “recommended that [the] Executive Session meeting not be recorded.”

On September 17, 2015, the CSB held its regularly scheduled meeting.  The notice and agenda for the meeting were originally posted on September 10, 2015.  The CSB President emailed the agenda to the Board members around 3:50 p.m. on the day of the meeting, which was scheduled for 6:30 p.m.  Attached to the email message was a final revised version of the proposed contract for the superintendent position.  The agenda itself was not revised prior to the meeting.


  1. The Petitions

We received your first Petition by email on or about August 10, 2015.  Your August Petition requests that we determine whether the CSB violated FOIA when it discussed the superintendent’s competency and abilities in executive session.  You also raise your concern that the CSB violated FOIA by holding a vote in executive session to prevent a board member from making an audio recording of the meeting.

We received your second Petition on or about September 18, 2015.  Your September Petition requests that we determine whether the CSB violated FOIA by distributing a revised version of the superintendent’s contract less than six hours in advance of the CSB’s September meeting.

  1. The CSB’s Response

We received the CSB’s responses on or about August 20, 2015 and October 6, 2015, respectively.  The CSB denies that it violated FOIA when it discussed the superintendent’s competency and abilities in executive session during the August meeting.  According to the CSB, this practice is expressly permitted by 29 Del. C. §10004(b)(9).  The CSB also confirmed that it only discussed the superintendent’s competencies and abilities during the executive session portion of the meeting.  The CSB conceded that it voted on the recording issue during executive session and agreed to refrain from taking any votes in executive session in the future.

Regarding the September 17, 2015 meeting, the CSB denies that circulating a revised version of the superintendent’s contract within hours of the school board meeting violated FOIA.  According to the CSB, the agenda was not altered and FOIA does not require the advance posting of documents to be voted upon.


FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed [for a permitted reason].”[2]  Pursuant to 29 Del. C. § 10004(b), public bodies may “call for an executive session closed to the public” only for purposes permitted by the statute.  For example, section 10004(b)(9) permits public bodies to meet in executive session to discuss “[p]ersonnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.”  However, 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.”[3]


The Petitions require us to determine whether the CSB’s August and September meetings violated FOIA’s open meeting requirements.

  1. The August 4, 2015 Meeting

We reviewed the notice, agenda and minutes for the August 7, 2015 meeting and conclude that the CSB did not violate FOIA when it discussed the competency and abilities of the superintendent in executive session.  Section 10004(b)(9) of FOIA permits a public body to meet in executive session to discuss the names, competency and abilities of individual employees.  According to the CSB, the superintendent is considered an employee of the school district.  Accordingly, the CSB’s discussion of the superintendent’s competency and abilities was a proper topic for an executive session discussion.

We do not agree that Attorney General Opinion 15-IB01 is controlling with respect to this matter.  That opinion dealt with the narrow issue of whether a school board may discuss a superintendent’s competency and abilities in executive session where those matters are intertwined with the deliberations and vote to approve the renewal of that superintendent’s employment contract.  The determination is limited to the unique factual circumstances of that case and our office will not find a FOIA violation has or is about to occur simply because a school board discusses a superintendent’s competency or abilities in executive session.  School boards should be able to discuss the competencies and abilities of all of their employees, including superintendents, in executive session, and may do so within FOIA as long as those discussions are severed from express discussions regarding renewal of a superintendent’s contract.

However, we find that the CSB violated FOIA when it “recommended that [the] Executive Session meeting not be recorded” while in executive session.  Pursuant to 29 Del. C. §10004(c), “all voting on public business must take place at a public meeting and the results of the vote made public” (emphasis supplied).   “Public business” is broadly defined as “any matter over which the public body has supervision, control, jurisdiction or advisory power.”   The CSB’s vote regarding its internal meeting procedures is “public business” because it relates to a matter over which the CSB has supervision, control, jurisdiction or advisory power.  Accordingly, any vote regarding the manner in which the Executive Session was to be recorded should have been held during the public portion of the meeting.

  1. The September 17, 2015 Meeting

The Petition alleges that the CSB violated FOIA because the CSB president emailed a final revised version of the superintendent’s contract to board members less than six hours prior to the CSB’s September meeting.  The Petition does not allege that the notice or agenda was revised less than six hours prior to the meeting and we find no evidence that this occurred.

We disagree that the CSB violated FOIA when it circulated a copy of the superintendent’s contract within hours of the September board meeting.  The CSB posted a timely notice of the meeting and the agenda, which were sufficient to the public on notice of the CSB’s intention to discuss the superintendent’s contract.  Nothing more was required.[4]


We conclude that the CSB did not violate FOIA when it discussed the district superintendent’s competency and abilities in executive session at the August 2015 board meeting.  The CSB did violate FOIA when it held a vote in executive session at the August meeting.  However, we find that the executive session vote did not affect substantial public rights because no law requires executive sessions to be audio recorded.  Therefore, no remediation is required.  Finally, we conclude that the CSB did not violate FOIA’s meeting notice requirements when it circulated a copy of the superintendent’s contract less than six hours prior to the September 2015 board meeting.

Very truly yours,

/s/ Katisha D. Fortune


Katisha D. Fortune

Deputy Attorney General


/s/ Aaron R. Goldstein


Aaron R. Goldstein, State Solicitor

[1] Because of the fact-specific questions raised in the Petition, we briefly summarize our understanding of the relevant facts.  Please note that we do not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body.

[2] 29 Del. C. § 10004(a).

[3] 29 Del. C. § 10004(c).

[4] See 29 Del. C. §10004(e)(2)-(5) (detailing notice requirements for public body meeting notices and public body meeting agendas); Del. Op. Att’y Gen. 12-IIB13 (Dec. 21, 2012) (“FOIA requires our public bodies to give ‘public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof.’  FOIA requires that any such ‘notice’ include an agenda notifying the public of important matters that will be discussed and possibly voted on so that members of the public can decide whether to attend a particular public meeting.”) (internal citations omitted).


#StopESEA @DelawarePTA @DSEA1 @gacecoffice Don’t Drink The Kool-Aid!!!!

Exceptional Delaware 2018

Delaware PTA, DSEA & Governor’s Advisory Council for Exceptional Citizens:

You  hold a great deal of power in your groups.  We the people need you to band together and unite for the students of Delaware.  The ESEA reauthorization is all about more testing, more federal mandates and waivers, and even “social impact bonds”.  I know your bosses in the National PTA, NEA and Governor Markell are all behind this federal legislation.  But that does not mean you need to endorse legislation that has not even been seen by the public yet.

Delaware PTA: You know I love you for your support on the opt-out movement and House Bill 50!  We need you to take a serious look at the personalized learning models and competency-based education supports embedded in this legislation.  These are not good for students over the long-term, especially those students who are most in need.  This bill is…

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New Parent Advocacy Group For Special Needs Children & At-Risk Youth In The Works

Exceptional Delaware 2018

I can now reveal why Bill Doolittle stepped down as President-Elect of the Delaware PTA.  He is in the process of forming an advocacy group for the children in Delaware who need it the most!  And he wants parents help in the formation of this group.  Bill asked me to help get  the message out:

Beginning today, I am starting the effort of forming a group of parents/families and other interested individuals to begin the formal process of developing a mission/vision, purpose and to incorporate as a nonprofit for such an organization.

I have an initial concept which is a non dues (donation only) grassroots organization for parent/families and others who are interested in making sure that every child at risk can be fully supported to have the opportunity meet their potential. I see the efforts including: providing information, peer-to-peer support and of course strong focused advocacy. My initial…

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Dr. Godowsky, congrats on your award today! Well deserved and well earned! #WoW #WDEL

Steve Godowsky - Secretary of Education
Steve Godowsky, Secretary of Education, Delaware Academy of School Leadership (DASL).


DE State Board of Education, if you are going to agree to participate in these educational committees, send your actual board members



If the Delaware State Board of Education cannot send their own board members to sit on education committees, then stop asking and accepting committee assignments.

You are doing our state a disservice by not participating in these meetings. You are being informed by one person and not hearing the views of the entire committee/group. I do not care how many times you view a presentation, it is not the same as hearing the dialogue that takes place between the actual members and the public. This practice needs to change, if it does not, then we need to make sure you have no seat at the table. You are making decisions that are hurting our schools and our students and it needs to stop.

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Opt Your Child Out Tomorrow, Send The State Board A Clear Message

Exceptional Delaware 2018

This is why you need to opt your child out of the Smarter Balanced Assessment tomorrow on Wednesday, November 18th, 2015.  And you need to send this message to every single parent you know who has a child in public school in the entire state.  Use Facebook, Twitter, email, text and calling folks to let them know tomorrow is Opt-Out Day.  Schools can not punish you or your child for your right to exercise your rights for what is best for your child.

The Delaware State Board of Education does not care about our schools and our students.  These are unelected officials, along with the Secretary of Education, who serve at the pleasure of Governor Markell.  Let’s get this out in the open for those who are not aware.  They do not care about the path of destruction they leave in their wake with the excessive amount of standardized testing…

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