Brandywine Board Violated FOIA According To DOJ Legal Opinion Over Removal Of Student Discipline Record

An attorney representing a student in the Brandywine School District filed a FOIA complaint against the Brandywine Board of Education.  The matter concerned expunging a disciplinary record for a student.  While the report does not go into details, obviously, of who the student was or the incident that led to a disciplinary action, that was not the basis for this FOIA complaint.  The Brandywine board decided against expunging the student’s record in executive session but did not vote on the action item on their agenda in public session.

From the legal opinion:

FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting.   See 29 Del. C. § 10002(a).  If the public body intends to go into executive session, it must so indicate in the agenda.   See id.   Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public.   Id.  Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op.Att’y Gen. 06-IB12, Del. Op.Att’y Gen. 05-IB29, Del. Op.Att’y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.

The Board does not have any procedures for considering a student’s request to expunge his or her record.[2]  The process is discretionary.  Counsel for the Board argues that there was no vote in executive session.  The statute does use the term “vote,” but we take a practical view and look at whether a matter was “decided,” even if the body avoids a vote.  The Board sent a letter “declining” a proposal; this acknowledges that a decision was made.  Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over.  In any event we cannot say that the decision was made publicly.  We believe the import of the statute’s language that “all voting on public business must take place at a public meeting and the results of the vote made public” is that the public should  be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session.  Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.

We find that the aforementioned Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA.  The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.

The attorney representing the student received an email from the district’s attorney which stated:

On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, “Steve. Given the strength of the District’s position it declines your client’s proposal to clear his record.”

While this does not make this a legal ruling, but rather an opinion, if the party who filed the FOIA complaint wished to pursue legal action, they certainly could.  However, by state law, the Department of Justice could not sue since school districts are a part of the state.  Last month at the Delaware State Board of Education there was an appeal matter on the board’s agenda.  This concerned an appeal against the Brandywine Board of Education.  It is not known if the two are connected.  To read the full ruling, please go here.