Delaware Freedom of Information Act

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The Delaware Freedom of Information Act is a series of laws designed to guarantee that the public has access to the public records of governmental bodies in Delaware. The law was first enacted in 1977.

The Delaware Open Meetings Law legislates the methods by which public meetings are conducted.

Statutes 10001 through 10005 define these transparency laws.

To learn more about how to make a public records request in this state, please see Delaware FOIA procedures.

Relevant legal cases

See also: Court cases with an impact on state FOIA

Here is a list of relevant lawsuits in Delaware (cases are listed alphabetically; to order them by year, please click the icon to the right of the "year" heading).

Lawsuit Year
Delaware Solid Waste Authority v. News-Journal Co. 1984
Guy v. Judicial Nominating Commission 1995
Lee v. Minner 2006
New Castle County Vocational-Technical Education Association v. Board of Education 1978
News-Journal Co. v. Billingsley 1980


Proposed changes

2009

House Bill 1

Amending the Delaware Code Related to the Freedom of Information Act
As of early 2009, documents produced by the Delaware legislature were exempt under Delaware FOIA law.[1] House Bill 1, sponsored by House Speaker Robert F. Gilligan was introduced in the Delaware state legislature on January 6, 2009.[2] The bill proposed to end the exemption to all committee meetings and records generated by the General Assembly, excepting party caucuses.[1]

An amendment to the bill was sponsored by House Majority Leader Pete Schwartzkopf (D-Rehoboth Beach).[3] The amendment sought to exempt all e-mail "received and sent by members of the Delaware General Assembly or their staff," in effect closing off access to records that were then subject to public disclosure.[3]

House Bill 90

Creating a Searchable Budget Database for State Spending
House Bill 90 was introduced in the state legislature on March 24, 2009.[4][5] The bill, sponsored by Representative Greg Lavelle, stated that "taxpayers should be able to easily access the details on how the State is spending their tax dollars and what performance results are achieved for those expenditures."[4] The bill sought to create a searchable budget database detailing all state expenditures, their purpose and results.[4] The bill was assigned to the House Administration Committee.[5]

Senate Bill 58

Amending the Delaware Code Related to the Freedom of Information Act
Senate Bill 58 was introduced in the state legislature by Senator Karen Peterson on April 7, 2009.[6][7] The bill sought to make various amendments to the Delaware Code relating to the Freedom of Information Act which would:

  • Create consistency in the determination of whether a record is public by designating the public body that first created the document as responsible for determining if a record is subject to disclosure;[6]
  • Clarify that the purpose for which a document is sought is irrelevant under the FOIA;[6]
  • Increase the period of time the state's Attorney General has to investigate and determine whether there has been an FOIA violation;[6] and
  • Permit the Attorney General to determine FOIA complaints made against state bodies and officers.[6]

The bill was referred to the Senate Executive Committee on April 7, 2009.[7]

Transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Delaware #43 in the nation with an overall percentage of 42.30%.[8]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Delaware 31 points out of a possible 100, a letter grade of "F" and a ranking of 42 out of the 50 states.[9]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Delaware's law as the 38th worst in the country, giving it a letter grade of "D."[10]

Features of the law

Sunshine variations Compare States: Sunshine variations
Click on the heading to compare your state's law to other state's transparency laws.

Declared legal intention

See also: Declared legal intentions across the U.S.

The declared legal intention of the Delaware Freedom of Information Act states, "It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic."[11]

What records are covered?

See also: Defining public records

Public records are defined as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes."[12]

Exemptions

Exemptions to open records laws include:

  • "Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy"[12]
  • Trade secrets
  • Current police investigations, adoption information and child custody information
  • Any criminal records deemed personal and private
  • Criminal intelligence information that would pose a security risk
  • "Any records specifically exempted from public disclosure by statute or common law"[12]
  • Anonymous charitable contributions to the public
  • Labor negotiations records
  • The minutes of executive meetings where the meeting has been closed by a vote of the public body because the subject of the meeting was either hiring discussions, disciplinary hearings, litigation strategy, criminal investigations or preliminary discussions of publicly funded projects
  • Records of registered concealed weapons permits
  • Public Library records
  • Department of Correction records when sought by an inmate in that department
  • Autopsy photos and videos
  • The emails of the Delaware General Assembly and their staff
  • Any records that could result in a security risk to either individuals or infrastructure
  • Military service discharge documents

[12]

Deliberative process exemption

See also: Deliberative process exemption and Deliberative process exemption - Delaware'

'The Delaware Freedom of Information Act contains statutes that prevent the release of the emails of legislators and their staff. In addition, in Guy v. Judicial Nominating Commission, the Delaware Supreme Court established an exemption for executive privilege for documents relating to candidates for appointment to executive and judicial posts.

What agencies are covered?

See also: Defining public body

Public agencies include all bodies and divisions of the government, including committees, as well as any organization receiving funding from the government or dispensing funding from the government. Agencies that are excluded include University of Delaware and Delaware State University, with the exception of the boards of regents and budgets concerning the expenditure of public funds.

Legislature

See also: Legislatures and transparency

The Delaware state legislature was specifically exempted from the Freedom of information Act under Delaware Code Title 9, § 10002(c) until it was modified in 2009 to include them.[13]

Private governmental agencies

See also: Private agency, public dollars and Private agency, public dollars - Delaware

The Delaware Freedom of Information Act includes in its definition of public body all private agencies that were created by a public agency and either receive public funding or perform a public function.

Public universities

See also: Universities and open records

The University of Delaware and Delaware State University are explicitly exempt from the law. The exemption excludes the board of regents with regard to budgetary information, which is considered public under the state open records law. Anonymous charitable donations are also exempted under the law.[12]

Who may request records?

See also: List of who can make public record requests by state

According to the law, any citizen of Delaware may request public documents. The law explicitly states "All public records shall be open to inspection and copying by any citizen of the State."[14] However, this law has been overturned by a Third Circuit Court decision, opening public records requests to all U.S. citizens.

Impact of Lee v. Minner

In 2006, the Judgepedia:United States Court of Appeals for the Third Circuit) in the case Lee v. Minner rejected the constitutionality of Delaware's law that disallowed non-residents from making public record requests.

The Third Circuit's rulings apply to Delaware, New Jersey, Virginia, Arkansas, Pennsylvania and any other state who permits access to only state citizens. As a result, the provision in the Delaware Freedom of Information Act that prohibits non-residents from access to records is likely to be considered invalid.

Retrieving records

Formerly, government entities in Delaware would not send any records, neither physically nor electronically. The Delaware Freedom of Information Act, section 10003 titled "Examination and copying of public records," states that each public body is responsible for establishing its own rules and regulations regarding access to records and fees. The discretion left to government bodies over access to records allows public bodies to refuse to reproduce or send any records unless the citizen requesting information physically visits the office of the government and inspects records.[15]

This was changed in 2011 with the adoption of a standardized form for requesting public records across the state, thereby eliminating much of the leeway afforded individual divisions.[13]

Must a purpose be stated?

See also: States requiring a statement of purpose

The purpose of the records request cannot be requested or taken into account when accepting or denying records requests.

How can records be used?

See also: Record use restrictions

The Delaware FOIA does not place limits on the use of public records.

Time allowed for response

See also: Request response times by state
15 days

In 2010, the Delaware General Assembly added a 15 day response time for all FOIA requests.[13]

Fees for records

See also: How much do public records cost? and Sunshine laws and search fees

The Delaware law permits "reasonable" fees to be charged for copies of public records but does not elaborate on what factors can be included in the fee. However, in 2011, Governor Markell issued an executive order capping copying fees for public records requests at 10 cents a page with the first 20 pages free, thus effectively limiting the amount agencies can charge for public documents.[13]

The Delaware law does not encourage the use of search fees nor does it prevent public bodies from charging them. The act is silent as to the appropriate use of fees.

Role of the Attorney General

See also: Role of the Attorney General


Amended §10005(e) of Title 29 of the Delaware Code specifies that if an individual's petition for access to information is denied, it can be given to the State Attorney General who will “promptly determine whether the petition is against an administrative office or officer, agency, department, board, commission or instrumentality of state government which the Attorney General is obliged to represent pursuant to §2504 of this Title."[16] If a violation of the State Freedom of Information Act has occurred, "the Attorney General shall not represent the public body in any appeal filed pursuant to this Chapter for such violation if the public body the Attorney General is otherwise obligated to represent fails to comply with the Chief Deputy’s determination."[16]

Open meetings

The Open Meetings law declares that, "Every meeting of all public bodies shall be open to the public" with some exceptions.[17]

See also

External links

References