Delaware

Open Government Guide

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Last updated August 23, 2021

Lauren P. Russell
BALLARD SPAHR LLP
1909 K Street, NW, 12th Floor
Washington, DC 20006-1157
202.661.7605

Previously updated by RCFP staff based on an earlier edition by Chad M. Shandler and Laura D. Hatcher at Richards, Layton & Finger, Wilmington, Delaware.

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Foreword

At common law a person was entitled to inspect public records, including legislative, executive and judicial records, provided the citizen had an interest therein for some useful purpose and not for mere curiosity. C. v. C., 320 A.2d 717 (Del. 1974).

In 1977, the Delaware General Assembly adopted the Freedom of Information Act, 29 Del. C. § 10001 et seq. (the “Act” or “FOIA”). The Act’s purpose is stated at the outset in what is titled the “Declaration of Policy”:

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. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed.

Id. § 10001.

In 1982 the Act was amended to delete the “grants-in-aid” exclusion, and in 1985 the Act was strengthened and clarified, limiting the available grounds for executive session, improving the procedures for notice, agenda and executive session, and adding to the powers of citizens seeking to enforce the Act. For example, in 1985 the General Assembly cured a defect in the Act by making committees of a public body open, a loophole noted by the Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co., 480 A.2d 628 (Del. 1984). The Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co. recognized that the General Assembly, through its amendments, had a continuing interest and commitment to providing a free flow of information.

On July 7, 1987, Delaware’s governor signed into law an amendment to the Act permitting the court to award attorneys’ fees and costs to a successful plaintiff and to a successful defendant if the court finds the action was frivolous or brought solely for the purpose of harassment. Id. § 10005(d). The amendment also provides that a citizen can request the Attorney General to make a written determination as to whether a violation has occurred. Id. § 10005(e). If the Attorney General finds that a violation has occurred, the citizen may bring an action or request the Attorney General’s office to bring an action on behalf of the citizenry. Id. The Attorney General’s office is not required to bring actions against agencies or commissions that it represents. Id. § 10005(f). Finally, the amendment restricts the ability of public bodies to hold meetings outside the State of Delaware. Id. § 10004(g).

The General Assembly appears receptive to curing defects in the Act as they are discovered, primarily as a result of judicial decisions. Though the Delaware Act was not modeled on the federal FOIA, certain fundamental language related to exemptions is identical. On occasion the Delaware courts have looked to cases under the federal Act. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980); see also Del. Op. Att’y Gen., No. 95-ib24 (Aug. 7, 1995).

2. Purpose of request

The requester’s purpose (e.g., “commercial purpose”) cannot affect his right to receive records. New Castle County Vocational-Technical Educ. Ass’n v. Board of Educ., 1978 WL 4637 (Del. Ch. Sept. 25, 1978) (declining to find as a basis for excluding a request the fact that the request was made by a labor organization).

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3. Use of records

The Act does not make any restrictions on subsequent use of information, provided, however, that an agency releasing documents under the APA may impose reasonable precautions to preserve the integrity and security of the document. 29 Del. C. § 10112(b)(1).

Each court has a separate but similar policy regarding public access to court records and the process for requesting records, which are accessible on the Delaware Courts website.

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4. Nongovernmental bodies

The Act covers bodies “established . . . appointed . . . or otherwise empowered by any state governmental entity” which: (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. 29 Del. C. § 10002(k). The University of Delaware and Delaware State University are not included, except that their respective Boards of Trustees are considered to be “public bodies.” Id. § 10002(l). University documents relating to the expenditures of public funds are “public records,” and each meeting of the full Boards of Trustees of the University of Delaware and Delaware State University is a “meeting.” Id.

10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Act provides a fee schedule for FOIA requests that is applicable “[u]nless otherwise set forth in the Delaware Code or any applicable code of a county or municipal public body.” 29 Del. C. § 10003(m). The Act provides a fee schedule for photocopying, administrative and microfilm and/or microfiche printouts. Id.

Agencies may charge administrative fees for requests that require more than one hour of staff time to process, and those fees may be for “identifying records; monitoring file reviews; and generating computer records (electronic or print-outs). Administrative fees shall not include any cost associated with the public body’s legal review of whether any portion of the requested records is exempt from FOIA.” Id. Agencies are to ensure the administrative fees are “minimized” and “reasonable.” Id.

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2. Particular fee specifications or provisions

Public bodies may charge administrative fees for staff time exceeding one hour, which may include “identifying records; monitoring file reviews; and generating computer records,” but it cannot charge for “legal review of whether any portion of the requested records is exempt from FOIA.” 29 Del. C. § 10003(m)(2). A public body may require all or a portion of the fee be paid before fulfilling the request. Id. § 10003(m)(5).

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3. Provisions for fee waivers

An agency may provide for the waiver of duplication fees where special circumstances arise; for example, if the public interest would be served by such a waiver. See Del. Op. Att’y Gen., No. 94-I013 (Mar. 15, 1994); see also 29 Del. C. § 10003(m)(2) (state agency may include fee waiver provisions in its policies so long as the waiver is applied equally to a class of persons, such as nonprofit organizations).

Not applicable.

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3. Commission or agency enforcement

Not applicable.

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A. Exemptions in the open records statute

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1. Character of exemptions

There are 19 specific exemptions contained within the Act. Additionally, records of the General Assembly and certain records of the University of Delaware and Delaware State University are excluded. 29 Del. C. § 10002; see Del. Op. Att’y Gen., No. 00-ib08 (May 24, 2000) (holding that any documents relating to the spending of state funds for those infrastructure improvements are “public records” under FOIA, and that the University was required to make them available for inspection and copying). Given the Act’s commitment to making records available, the exemptions are construed narrowly and specifically and thus are not easily abused. See Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984); News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).

The Act preserves all common law and other statutory exemptions to public disclosure. 29 Del. C. § 10002(o)(6).

Though the Delaware Act was not modeled on the federal FOIA, certain fundamental language related to exemptions is identical. On occasion the Delaware courts have looked to cases under the federal FOIA. See, e.g., News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980).

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2. Discussion of each exemption

29 Del. C. § 10002(o)(1): “Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy.” See Gannett Co. v. Christian, 1983 WL 473048 (Del. Super. Aug. 19, 1983) (disclosure of teacher salary information not an invasion of privacy). For example, Social Security numbers need not be disclosed. Del. Op. Att’y Gen., No. 95-ib03 (Jan. 25, 1995). Further, withholding taxes, Social Security declarations and elective declarations are not required to be disclosed. Likewise, score sheets of interviewees during the applicant selection process for a new driver’s education instructor have been exempted from disclosure. Del. Op. Att’y Gen., No. 05-ib20 (July 27, 2005). However, the names of the presidents and the contact information for corporations have been held to be public information under FOIA. Del. Op. Att’y Gen., No. 03-ib01 (Jan. 10, 2003).

For purposes of construing Delaware’s FOIA, “personnel file” is defined as “any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records.” Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002) (adopting the definition in 19 Del. C. § 731).

29 Del. C.§ 10002(o)(2): “Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature.” This exemption has been construed to protect “individuals from a wide range of embarrassing disclosures.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Del. Op. Att’y Gen., No. 87-1031 (Nov. 4, 1987). For example, “information regarding one’s assets, profits and losses, stock holdings, loans and collateral” is confidential financial information exempt from disclosure under FOIA. Del. Op. Att’y Gen., No. 87-I031 (Nov. 4, 1987); see Del. Op. Att’y Gen., No. 96-ib30 (Sept. 25, 1996) (tax returns of parents of children applying for scholarships exempt from disclosure under FOIA); see also Del. Op. Att’y Gen., No. 00-ib15 (Oct. 4, 2000) (outlining the trade secret exception).

The FOIA exemption for confidential commercial or financial information may apply “when the government requires a private party to submit information as a condition of doing business with the government.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Jud. Watch v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000)). To fall within the exemption, the government has the burden of showing that disclosure of the information “is likely to cause substantial harm to the competitive position of the person from whom the information was obtained.” Id.

29 Del. C.§ 10002(o)(3): “Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue.” See Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985), appeal dismissed, 508 A.2d 470 (Del. 1986) (statements of witnesses in robbery investigation exempt from disclosure); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigation files of professional engineers not public); see alsoDel. Op. Att’y Gen., No. 04-iB20 (Nov. 16, 2004) (exempting an accident report); Del. Op. Att’y Gen., No. 99-ib14 (Nov. 5, 1999) (exempting documents pertaining to a police complaint relating to an unregistered motor vehicle). The exception applies even after the file has been closed. Del. Op. Att’y Gen., No. 99-ib14 (Nov. 5, 1999); Billingsley, 1980 WL 3043.
29 Del. C.§ 10002(o)(4): “Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s personal criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.”
29 Del. C.§ 10002(o)(5): “Intelligence files compiled for law-enforcement purposes, the disclosure of which could constitute an endangerment to the local, state or national welfare and security.”
29 Del. C.§ 10002(o)(6): “Any records specifically exempted from public disclosure by statute or common law.” SeeGuy v. Jud. Nominating Comm’n, 659 A.2d 777 (Del. Super. 1995) (holding that the confidential records of an appointed commission are protected by constitutional and common law doctrine of executive privilege, exempting the records from disclosure); Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002) (holding that the common law work product privilege can except disclosure); Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002) (holding nonmandatory traffic accident reports were not public records); see also Mell v. New Castle Cnty., 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

Delaware courts have recognized a common law right of informational privacy, which guards against disclosure by the government of personal information about citizens. See Del. Op. Att’y Gen., No. 01-ib17 (Nov. 19, 2001) (determining that Delaware’s FOIA protects the names and addresses of retired public employees because disclosure of that information would invade their privacy). For example, public employees’ right of privacy in the records of a legal settlement has been found to outweigh the public interest in disclosure. Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002); see also Del. Op. Att’y Gen., No. 99-ib02 (Apr. 16, 1999).

29 Del. C.§ 10002(o)(7): “Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor.”
29 Del. C.§ 10002(o)(8): “Any records involving labor negotiations or collective bargaining.” The purpose behind this exception is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Del. Op. Att’y Gen., No. 04-ib16 (Oct. 13, 2004). The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Id.(exempting copies of proposed or pending contracts and other documents between the Brandywine School District and Brandywine Education Association).
29 Del. C.§ 10002(o)(9): “Any records pertaining to pending or potential litigation which are not records of any court.” FOIA’s pending/potential litigation exemption is intended to prevent litigants from using “FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.” Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003); see also Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003).

The pending litigation exemption “turns on the identity of the requester and the purpose of the request.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003). The exemption applies when “[i]t is exclusively about litigators and litigants looking for materials that might help them in court.” Off. of the Pub. Def. v. Delaware State Police, 2003 WL 1769758, at *3 (Del. Super. Mar. 31, 2003); see Del. Op. Att’y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties); Del. Op. Att’y Gen., No. 04-ib04 (Feb. 5, 2004) (extending the pending litigation exception to quasi-judicial proceedings including arbitration); Del. Op. Att’y Gen., No. 03-ib10 (May 6, 2003); Mell, 835 A.2d at 149 (exempting documents under the pending litigation exception); see also Del. Op. Att’y Gen., No. 03-ib26 (Nov. 13, 2003).

For the potential litigation exemption to apply, “FOIA requires a two-part analysis: first, litigation must be likely or reasonably foreseeable; and second, there must be a clear nexus between the documents requested under FOIA and the subject matter of the potential litigation.” Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003). “A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors such as: (1) a formal demand letter or some comparable writing that represents the party’s claim and manifests a solemn attempt to sue; (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims; or (3) proof that a party has retained counsel with respect to the claim at issue and has expressed an intent to sue.” Id.; see also Del. Op. Att’y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a pre-suit exchange of letters between potential parties). To invoke this provision, there must be a discussion of “litigation strategy.” Anticipation of litigation is not enough. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). Mere possibility that documents may be involved in potential litigation does not shield those documents from public disclosure under this exemption. See Del. Op. Att’y Gen., No. 93-I005 (Mar. 3, 1993).

29 Del. C.§ 10002(o)(10): “[M]inutes of executive sessions [and] any record of discussions held in executive session [so long as public disclosure would defeat the lawful purpose for the executive session].” Seeid. § 10004(f); Chem. Indus. Council of Delaware, Inc., 1994 WL 274295. This exemption is related to the open meeting requirements of the Act.
29 Del. C.§ 10002(o)(11): “Any records which disclose the identity or address of any person holding a permit to carry a concealed deadly weapon; provided, however, all records relating to such permits shall be available to all bona fide law-enforcement officers.”
29 Del. C.§ 10002(o)(12): “Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used.”
29 Del. C.§ 10002(o)(13): “Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department’s custody.” The Delaware criminal code also specifies that inmates shall not be provided “the Department of Correction Policy and Procedures Manuals, The Bureau of Prisons Policy and Procedures Manuals, nor any of the Department of Correction Facilities Operational Procedures, Administrative Regulations and Post Orders,” and the Department of Correction Policies and Procedures are confidential absent written authority from the Commissioner. 11 Del. C. § 4322(c), (d); see Ryle v. Delaware Dep’t of Just., 238 A.3d 849 (Del. 2020) (affirming summary dismissal of lawsuit over inmate’s request for the DOC Employee Code of Conduct); see also Hall v. Coupe, 2016 WL 3094406, at *1 (Del. Ch. May 25, 2016) (rejecting constitutional challenge to 11 Del. C. § 4322(c), (d)).
29 Del. C.§ 10002(o)(14): “Investigative files compiled or maintained by the Violent Crimes Compensation Board.”
29 Del. C.§ 10002(o)(15): “Any photographs, video recordings or audio recordings of a postmortem examination in the possession of the office of the Chief Medical Examiner.”
29 Del. C.§ 10002(o)(17)(a): Certain enumerated categories of records which, “if copied or inspected, could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual.” The General Assembly enacted this exemption in 2002 in response to the terrorist attacks of Sept. 11. SeeDel. Op. Att’y Gen., No. 05-ib19 (Aug. 1, 2005) (stating that the exemption covers law enforcement manuals such as check point guidelines and the Wilmington Police Department’s Police Officer’s Manual to the extent they contain information that would disclose investigative techniques and procedures or endanger the life and safety of citizens or law enforcement officers).
29 Del. C.§ 10002(o)(18)(a): “Any military service discharge document or documents, a discharge, separation notice, certificate of service, report of transfer or discharge, or any other notice or document which is evidence of severance or transfer from military service and which contains a service record from the armed forces of the United States, or any document that purports to represent a notice of separation from or service in any armed forces of the United States[.]” These records may only be released to the veteran, with the veteran’s consent, or to a court or public agency in certain circumstances, although they are public records 70 years after the date of separation or discharge. Id.§ 10002(o)(18)(b), (c).

s. 29 Del. C. § 10002(o)(19): “Any communications between a member of the General Assembly and that General Assembly member’s constituent, or communications by a member of the General Assembly on behalf of that General Assembly member’s constituent, or communications between members of the General Assembly.”

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B. Other statutory exclusions

1. Administrative Procedures Act.Certain agencies may be subject to the APA, which provides discretionary exemptions for internal procedure manuals, investigative files and confidential and privileged material. 29 Del. C. § 10112(b)(4).

2. Antitrust — Investigative Demands.Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand by the Attorney General regarding knowledge concerning possible antitrust violations shall be exempt from disclosure under the Act. 6 Del. C. § 2106(i).

3. Corporations — Transfer of Domicile.Documents submitted to the Secretary of State relating to the temporary transfer of corporate domicile to Delaware are exempted from disclosure, until and unless the corporation actually transfers its domicile to Delaware. 8 Del. C. § 389.

4. Collective Bargaining — Police and Firefighters, Public Employees, Public Schools. Negotiating sessions, including strategy meetings of public employers, mediation and the deliberative process of fact-finders are exempt from the Act. 19 Del. C. §§ 1313(b), 1613(b), 4013(b).

5. Engineers. The following items are specifically exempted from public disclosure under the Act:

(1) All applications to practice engineering in Delaware and associated documents;

(2) Records and information received by the Council relating to charges against any person that could result in disciplinary action; and

(3) All examination materials and related documents.

24 Del. C. § 2828(b).

6. Hazardous Waste. The Secretary of the Department of Natural Resources may exempt certain information pertaining to hazardous waste obtained by the department if such information is proprietary or would divulge trade secrets. 7 Del. C. §§ 6304(c), 9116.

7. Health Data. Protected health information is not public information as defined at § 1002 of Title 29, and may not be disclosed without the informed consent of the individual. 16 Del. C. § 1212(a). Whenever protected health information is disclosed it shall be done in a nonidentifiable form, except when such disclosure is authorized by the individual. Id. § 1212(c). Raw data is not available for public inspection and is not considered a public record under the Act. Id. § 2006. Likewise, the results of mandatory human immunodeficiency virus tests conducted against sex offenders are not public records and are not subject to the Act. 10 Del. C. § 1077(b).

8. Insurance — Reinsurance Intermediary Act. Reports prepared by the Insurance Commissioner regarding refusal to issue a reinsurance intermediary license are not subject to the Act. 18 Del. C. § 1603(e).

9. Lotteries. Information that is required to be reported, such as information pertaining to video lottery agents and financial information of licensees, is not subject to public disclosure under the Act. 29 Del. C. §§ 4805(a)(22), (a)(23), (b)(14), 4820(g).

10. Special Law Enforcement Assistance Fund. The purpose of this fund is to financially assist law enforcement operations targeted at organized crime and drug trafficking. The sources of the fund are derived from criminal forfeitures. The records, applications, authorizations and reports pertaining to this special fund are subject to the Act, but applications are not subject to the Act while the committee reviews to determine if the application is exempt. 11 Del. C. § 4113. If the committee determines an application or any portion is not exempt from FOIA, the applicant may withdraw the application within 10 business days of the determination, and the application will not be deemed a public record. Id. § 4113(c).

11. Tax Returns. The state tax information required under Title 30 is not subject to disclosure under the Act. 30 Del. C. § 368; see also Del. Op. Att’y Gen., No. 95-ib13 (Mar. 20, 1995).

12. Victim’s Bill of Rights. The address, place of employment and telephone number maintained by a court, prosecutor or law-enforcement agency of victims of certain crimes in Delaware are exempt from disclosure under the Act. 11 Del. C. § 9403(c).

13. Grand Jury Subpoenas. The Attorney General has opined that Rule 6(e) of the Federal Rules of Criminal Procedure specifically exempts the disclosure of grand jury subpoenas under Delaware’s FOIA. Del. Op. Att’y Gen., No. 03-ib02 (Jan. 17, 2003).

14. Peer Review. In the medical profession, records of a review board have been said to be exempt. See 24 Del. C. § 1768.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

1. Executive privilege. The concept of executive privilege was recognized to exclude a request for the Judicial Nominating Commission records under 29 Del. C. § 10002(o)(6) in Guy v. Judicial Nominating Commission, 659 A.2d 777 (Del. Super. 1995).

2. Social Security Numbers. The Attorney General has determined that the Social Security numbers contained in sworn payroll information required by the state prevailing wage laws could not be disclosed under the Act. Del. Op. Att’y Gen., No. 95-ib03 (Jan. 25, 1995).

3. Administrative Burden. There is some indication that the courts might deny a person disclosure to otherwise nonexempt information if the scope of the request would unduly burden the public body or if the administrative costs were too high. See Del. Op. Att’y Gen., No. 95-ib13 (Mar. 20, 1995).

4. Autopsy reports. Autopsy reports have been held exempt from the Act as investigatory files. SeeDel. Op. Att’y Gen., No. 05-ib16 (June 22, 2005); Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006) (holding that autopsy information gathered and disclosed to the police department during an investigation was confidential); 29 Del. C. § 4701. Death certificates are also similarly treated. 24 Del. C. § 3110.

5. Personal notes. Personal notes have not been subject to public access under the Act. Del. Op. Att’y Gen., No. 17-IB66 (Dec. 29, 2017); Del. Op. Att’y Gen., No. 02-ib34 (Dec. 21, 2002).

6. Draft documents. The Attorney General has opined that draft contracts under negotiation are exempt, and a deliberative process privilege exempts certain draft documents. Del. Op. Att’y Gen., No. 21-IB15 (July 1, 2021).

G. Agency obligation to identify basis of redaction or withholding

The Act does not require this, but the Attorney General has ordered agencies to provide the bases of redactions or withholding in public records decisions. Del. Op. Att’y Gen., No. 17-IB06 (Mar. 21, 2017); Del. Op. Att’y Gen., No. 16-IB03 (Mar. 4, 2016).

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports have been held exempt from the Act as investigatory files and under Delaware’s Health Record Privacy Statute, 16 Del. C. § 1210 et seq. See Del. Op. Att’y Gen., No. 15-IB13 (Dec. 29, 2015); Lawson v. Meconi, 897 A.2d 740 (Del. 2006).

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O. Police records

15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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Not specified.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

Public agencies are required to designate a “FOIA coordinator” who is identified on the agency’s website. 29 Del. C. § 10003(g). The coordinator is to track requests and help coordinate fulfillment of the requests.

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2. Does the law cover oral requests?

Pursuant to recent revisions, “[a]ll FOIA requests shall be made in writing to the public body in person, by U.S. mail, by e-mail, by fax, or online.” 29 Del. C. § 10003(f)(1).

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3. Required contents of a written request

“All requests shall adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort. The requesting party shall be as specific as possible when requesting records.”
29 Del. C. § 10003(f)(2).

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4. Can the requester choose a format for receiving records?

The Act does not specifically address whether the requester may choose a format. Each public body that is required to allow public access to records is responsible for issuing its own rules and regulations regarding access to public records. Under Delaware corporate law, access to documents retained by the Secretary of State may only be issued as photocopies or electronic images. 8 Del. C. § 391(c).

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5. Availability of expedited processing

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B. How long to wait

(This section is blank. See the subpoints below.)

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1. Statutory, regulatory or court-set time limits for agency response

The public body is required to respond as soon as possible, but in any event no later than 15 business days, “either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived.” 29 Del. C. § 10003(h).

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2. Informal telephone inquiry as to status

Making an informal telephone inquiry as to status is acceptable.

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3. Is delay recognized as a denial for appeal purposes?

Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial. 29 Del. C. § 10005(b).

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4. Any other recourse to encourage a response

A citizen may petition the Attorney General to determine whether any violation of the Act has occurred or is about to occur. 29 Del. C. § 10005(e). The Attorney General has 20 days to make a written determination of whether a violation has occurred and to provide the custodian of records or the public body involved with a copy of the determination. If the Attorney General is obligated under state law to represent the agency, the Chief Deputy Attorney General must make a determination as to whether a violation occurred; if so, the Attorney General shall not represent the body in an appeal. For other agencies, if the Attorney General finds that a violation has occurred, the citizen may sue or request that the Attorney General file suit. If a request is made, the Attorney General shall notify the citizen within 15 days of the decision to file suit. The citizen has the absolute right to file suit regardless of the determination of the Attorney General and may move to intervene as a party in any suit filed by the Attorney General. Id.

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1. Attorney General

By petition of a citizen denied access to information, the Attorney General can determine whether a violation has occurred. 29 Del. C. § 10005(e).

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Any citizen, 29 Del. C. § 10005(b), or the Attorney General, id. § 10005(e), may sue.

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2. Priority

A court does not give records questions priority on the docket, except when the parties can demonstrate urgency meriting expedited litigation.

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3. Pro se

Pro se litigation is possible but not advisable. It is recommended to petition the Attorney General, requesting that the Attorney General bring the action. 29 Del. C. § 10005(e).

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4. Issues the court will address

The burden of proof is on the custodian of records to justify the denial of access to records or any failure to comply with the act. 29 Del. C. § 10005(c).

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a. Attorney fees

A court may award attorneys’ fees to the successful plaintiff in an action brought under the Act. A court may award attorneys’ fees and costs to a successful defendant, but only if it finds that the action was frivolous or was brought solely for the purpose of harassment. 29 Del. C. § 10005(d); see Bd. Of Managers of the Delaware Crim. Just. Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003) (awarding attorneys’ fees and costs to requesting party).

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b. Court and litigation costs

Costs may be awarded. See Bd. of Managers of the Delaware Crim. Just. Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003) (awarding attorneys’ fees and costs to requesting party).

2. Time limits for filing appeals

A party has 30 days to file an appeal. Del. Supr. Ct. R. 6.

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3. Contact of interested amici

The Delaware Supreme Court has in the past permitted filing of a friend-of-the-court brief on similar issues. Del. Supr. Ct. R. 28.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

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G. Addressing government suits against disclosure

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Open Meetings

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A body is covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. See 29 Del. C. § 10002(k).

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2. Legislative bodies

Caucuses of the General Assembly are specifically exempted. 29 Del. C. § 10002(k); News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978) (separation of powers doctrine prevented court from enforcing the Act against the House of Representatives, which held a closed quorum meeting in violation of the plain language of the Act).

A “meeting” is defined as a formal or informal gathering of a quorum of the members of any public body for the purposes of discussing or taking action on public business. 29 Del. C. § 10002(j). The “public body” is a defined term. Id. § 10002(k). The Act also defines “public business” as any matter over which the public body has supervision, control, jurisdiction or advisory power.” 29 Del. C. § 10002(m); see, e.g., Del. Op. Att’y Gen., No. 01-ib13 (Aug. 9, 2001) (deciding a discussion of a waste transfer facility was a matter of “public business,” subject to the open meeting laws); Del. Op. Att’y Gen., No. 02-ib07 (Mar. 22, 2002) (informal luncheon with members of Sussex County Council and private organization was a “meeting” subject to the FOIA laws and, as such, minutes should have been prepared); see also Del. Op. Att’y Gen., No. 18-ib23 (May 4, 2018) (council members’ “serial meetings” with a consultant were not a violation because they did not involve a quorum); Del. Op. Att’y Gen., No 18-ib07 (Feb. 9, 2018) (council press conference was not a meeting).

Meetings must be held in a room “reasonably” able to accommodate those who wish to attend. Del. Op. Att’y Gen., No. 14-ib03 (June 16, 2014).

b. Deliberation toward decisions

All meetings of a public body for the purpose of discussing or taking action on public business are open to the public unless subject to a specific exemption. 29 Del. C. § 10004(a). The deliberative process privilege does not exist. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). FOIA does not allow “straw polling,” nor does it allow public bodies to reach “consensus votes” that they strive later to ratify in a public meeting. Del. Op. Att’y Gen., No. 05-ib29 (Oct. 13, 2005).

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3. Electronic meetings

A member with a disability may attend a public meeting through electronic means of communication. 29 Del. C. § 10006A.

A public body may hold a virtual meeting if: (1) the public notice includes information regarding how the public can monitor or participate in the meeting, (2) the meeting has an anchor location in the geographic jurisdiction of the public body, (3) the identity of a member or witness is verified, and the actions of a member are authenticated, in a manner satisfactory to the presiding officer or chair, and (4) all participating members and witnesses can either hear the comments of each member or witness or hear the comments of and view each member or witness. Id. § 10006A(c).

A public body may hold a virtual meeting during a state of emergency without an anchor location if it meets the above criteria, and:

(1) The virtual meeting is preceded by the same public notice as required under § 10004 of this title, except that notice of the public meeting does not need to be conspicuously posted at the principal office of the public body holding the meeting or where meetings of the public body are regularly held.

(2) If all of the members of the public body are elected by the public to serve on the public body, all of the following must occur:

a. A document that is used during the meeting by a member or witness, and that is accepted by the presiding officer or chair, is immediately transmitted to each member or witness participating in the meeting.

b. The public is able to review a recording of the meeting within a reasonable time after the meeting concludes.

Id. § 10006A(e).

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a. Conference calls and video/Internet conferencing

Conference calls between a quorum of the members of any public body for the purposes of discussing or taking action on public business appear to constitute public meetings that are subject to the Act. Tyron v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990) (finding that a telephone conversation was not a public meeting only because the conversation was between less than a quorum). A series of telephone calls made by a member of a public body to a number of other members of the same body, which number constitutes a quorum of the public body, is a meeting subject to the open meetings laws. Del. Op. Att’y Gen., No. 04-ib17 (Oct. 18, 2004).

Virtual meetings are permissible if the public body meets the conditions listed in 29 Del. C. § 10006A(c).

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b. E-mail

An exchange of e-mail between members of a public body discussing public business constitutes a meeting subject to the FOIA laws. Del. Op. Att’y Gen., No. 03-ib11 (May 19, 2003).

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c. Text messages

Although the Act does not specifically address text messages, such messages have been requested under the Act. Del. Op. Att’y Gen., No. 09-ib04 (June 4, 2009).

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d. Instant messaging

Not addressed by the Act.

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Not addressed by the Act.

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E. Categories of meetings subject to the law

(This section is blank. See the subpoints below.)

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1. Regular meetings

(This section is blank. See the subpoints below.)

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a. Definition

A “regularly scheduled meeting” shall mean any meeting of a public body held on a periodic basis. 29 Del. C. § 10004(g)(2).

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b. Notice

Notice of a meeting must be given at least seven days in advance. 29 Del. C. § 10004(e)(2); Ianni v. Dep’t of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (six days’ advance notice was insufficient); see also Del. Op. Att’y Gen., No. 01-ib10 (June 12, 2001) (holding that although violations occurred, remediation was not required because interested citizens were well represented by their elected representatives from city, state and federal government). A notice must include the times, dates and places of such meetings. See 29 Del. C. § 10004(e)(2); Ianni, 1986 WL 9610.

Notice must be given to the public. 29 Del. C. § 10004(e)(2), (3). Times, dates and places of meetings are required in a notice. See id. § 10004(e)(2). Notice in the form of a memorandum given to members of a committee but not the public at large is insufficient. Del. Op. Att’y Gen., No. 00-ib07 (Apr. 28, 2000).

Notice must be conspicuous. A conspicuous posting can be at the principal office of the public body holding the meeting or, if no such office exists, at the place where meetings of the public body are regularly held. A reasonable number of copies of such notice must be made available. 29 Del. C. § 10004(e)(5); Ianni, 1986 WL 9610 (posting of a single notice insufficient; other copies must be made available).

An agenda is required; however, FOIA contemplates that it is subject to change to include additional items such as executive session or the deletion of items. 29 Del. C. § 10004(e)(3). But see Del. Op. Att’y Gen., No. 99-ib11 (June 25, 1999) (agenda change should have been noticed because City Council knew of need to address issue at least 12 days in advance of meeting); Del. Op. Att’y Gen., No. 97-ib20 (Oct. 20, 1997) (“If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body’s meeting in order to circumvent the notice requirement of FOIA.”); Del Op. Att’y Gen., No. 00-ib07 (Apr. 28, 2000).

An agenda should be worded in plain and comprehensive language and must directly state the purpose of the meeting. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). If the agenda is available at the time of the initial posting, it should be added to the notice at least six hours in advance of the meeting, and the reasons for the delay in posting should be briefly set forth in the agenda. 29 Del. C. § 10004(e)(6). A general description in the agenda should be sufficient to draw attention to the significance of the subject to be discussed. Ianni, 1986 WL 9610; Del. Op. Att’y Gen., No. 05-ib30 (Oct. 24, 2005).

Any action taken at the meeting not adequately notified is voidable. 29 Del. C. § 10005(a); Ianni, 1986 WL 9610 (Court of Chancery reluctant to enter injunction where important public interests involved).

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c. Minutes

Minutes should contain a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), and of each vote taken and the action agreed upon. 29 Del. C. § 10004(f). Minutes of a meeting of a public body should be prepared by the time of the public body’s next regularly scheduled meeting. Del. Op. Att’y Gen., No. 03-ib05 (Feb. 5, 2003).

Minutes are public records and they must be available for public inspection and copying as a public record. 29 Del. C. § 10004(f); see also id. § 10002(o)(10).

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2. Special or emergency meetings

(This section is blank. See the subpoints below.)

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a. Definition

An emergency meeting is defined as one that is necessary for the immediate preservation of the public peace, health or safety. 29 Del. C. § 10004(e)(1). A special or rescheduled meeting is defined as a meeting held less than seven days after the scheduling decision is made. Id. § 10004(e)(4).

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b. Notice requirements

Notice for special meetings should be given as soon as reasonably possible, but in any event no later than 24 hours before such meeting. 29 Del. C. § 10004(e)(4); Del. Op. Att’y Gen., No. 01-ib02 (Jan. 30, 2001). The public notice of a special meeting “shall include an explanation as to why [seven days’ notice] could not be given.” 29 Del. C. § 10004(e)(4). FOIA, however, “requires only a reason, not a specific detailed factual basis why the seven day requirement could not be met.” Del. Op. Att’y Gen., No. 96-ib15 (May 10, 1996) (finding that notices lacked explanations why the seven-day requirement was not met for several special meetings and Town Council had to correct violations in open session at a properly noticed meeting); see Del. Op. Att’y Gen., No. 01-ib02 (Jan. 30, 2001) (holding the town violated the open meeting requirements of FOIA by not including an explanation of why it could not give seven days’ notice); see also Del. Op. Att’y Gen., No. 05-ib21 (Aug. 1, 2005) (school district violated FOIA by not including reason in notice as to why seven days’ notice of meeting could not be given).

No notice is required for emergency meetings that are necessary for the immediate preservation of the public peace, health or safety. 29 Del. C. § 10004(e)(1), (g)(3).

The penalty for failure to give adequate notice may be that the actions taken at the meeting are voidable. Id. § 10005(a).

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c. Minutes

Minutes should contain the following information: a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f). Minutes of a meeting of a public body should be prepared by the time of the public body’s next regularly scheduled meeting. Del. Op. Att’y Gen., No. 03-ib05 (Feb. 5, 2003). Minutes of executive sessions in emergency meetings should also be kept. Del. Op. Att’y Gen., No. 17-ib27 (July 18, 2017).

The minutes are available for public inspection and copying as a public record. 29 Del. C. § 10004(f); see also id. § 10002(g)(10).

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3. Closed meetings or executive sessions

(This section is blank. See the subpoints below.)

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a. Definition

An executive session is defined as a public meeting that is closed to the public. Executive sessions may be held only for the discussion of public business, and only for nine specific purposes. 29 Del. C. § 10004(b), (c); see Del. Op. Att’y Gen., No. 01-ib03 (Feb. 16, 2001) (concluding FOIA 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). It is the public body’s burden to justify a decision to meet in executive session. 29 Del. C. § 10005(c). FOIA does not permit a “stand alone” executive session. Del. Op. Att’y Gen., No. 02-ib33 (Dec. 23, 2002).

The agenda must include but is not limited to a statement of intent to hold an executive session and the specific grounds for the executive session under the Act. 29 Del. C. § 10004(e)(2).

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b. Notice requirements

Notice must be given at least seven days in advance for an executive session called during a regular meeting and at least 24 hours in advance for an executive session called during a special meeting. 29 Del. C. § 10004(e)(4). A public body meeting only to discuss matters authorized for executive session must still notice the meeting to the public so that the public has the opportunity to attend the opening of the meeting, to see that the public body follows the required procedures for going into executive session, and to observe any discussion of any public business that follows. Del. Op. Att’y Gen., No. 02-ib17 (Aug. 6, 2002).

The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in Section 10004(b) of the Act. 29 Del. C. § 10004(c); see Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Del. Op. Att’y Gen., No. 01-ib03 (Feb. 16, 2001) (the reasons for an executive session must be clearly delineated in the agenda); Del. Op. Att’y Gen., No. 03-ib20 (Sept. 3, 2003) (agenda listed a topic authorized by section 10004(b)(9) as one suitable for executive session, but since town council discussed item that would have been suitable for executive session under a different section of 10004(b)(1), a technical FOIA violation had occurred).

Failure to give adequate notice could result in the action taken at the meeting being voidable. 29 Del. C. § 10005(a); see also Del. Op. Att’y Gen., No. 02-ib33 (Dec. 23, 2002).

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c. Minutes

A record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f).

Minutes are a public record. However, minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session. Id. The burden of proving that public disclosure of the minutes would defeat the lawful purpose of the executive session is on the public body wishing to prevent disclosure. See Del. Op. Att’y Gen., No. 05-ib26 (Aug. 29, 2005). A practical reason for a public body to keep “meaningful minutes” (a contemporaneous record of subjects discussed in executive session) is to avoid failing to meet its burden of proving that the action was justified. The Act neither requires that subjects discussed in executive session must be summarized nor attempts to define how specific such a summary should be. See Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995).

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d. Requirement to meet in public before closing meeting

In order to go into executive session there must be an affirmative vote of a majority of members present at a meeting of the public body. 29 Del. C. § 10004(c). The vote on the question of holding an executive session shall take place at a meeting of the public body that shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. Id.

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e. Requirement to state statutory authority for closing meetings before closure

Although there is no requirement to give a statutory authority before executive sessions are held, “[t]he purpose of such executive sessions shall be set forth in the agenda and shall be limited to” meeting exemptions in the Act. 29 Del. C. § 10004(c).

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f. Tape recording requirements

If a virtual meeting is held during a state of emergency, the public must be able to review a recording of the meeting within a reasonable time after the meeting concludes. 29 Del. C. § 10006A(e).

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Act contains nine discretionary exemptions for closing executive sessions to the public. See 29 Del. C. § 10004(b). The Act contains nine discretionary and eleven mandatory exemptions to the open meeting statute. Id. § 10004(h).

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2. Description of each exemption

a. A public body may call for an executive session closed to the public for the following purposes:

1. 29 Del. C.§ 10004(b)(1): “Discussion of an individual citizen’s qualification to hold a job or pursue training unless the citizen requests that such a meeting be open.” This exception is limited to discussions of whether to hire a new employee such as a town manager or police chief. Del. Op. Att’y Gen., No. 01-ib01 (Jan. 16, 2001).

2. 29 Del. C.§ 10004(b)(2): “Preliminary discussions on site acquisitions for any publicly funded capital improvements.”

3. 29 Del. C.§ 10004(b)(3): “Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension.”

4. 29 Del. C.§ 10004(b)(4): “Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body.” See Beebe Med. Ctr. v. Certificate of Need Appeals Bd., 1995 WL 465318 (Del. Super. June 30, 1995), aff’d,676 A.2d 900 (Del. 1996); Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (cannot use to discuss views on regulations and to draft new regulations); Oberly v. Red Clay Consol. Sch. Dist., 1985 Del. Ch. LEXIS 399 (Del. Ch. Mar. 6, 1985) (cannot use meeting with attorney as device to avoid public discussion of merits of plan). This exemption applies to a “question and answer” session/meeting between a county attorney and members of a public body who have been named in their individual capacity as defendants in a lawsuit. Del. Op. Att’y Gen., No. 05-ib28 (Sept. 7, 2005). Potential litigation under this exemption applies only when there is a realistic or tangible threat based on objective factors, such as a written demand letter, notice of intent to sue, etc. Del. Op. Att’y Gen., No. 05-ib24 (Aug. 18, 2005).

5. 29 Del. C.§ 10004(b)(5): “Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor.”

6. 29 Del. C.§ 10004(b)(6): “Discussion of the content of documents, excluded from the definition of ‘public record’ . . . where such discussion may disclose the contents of such documents.” SeeDel. Op. Att’y Gen., No. 96-ib30 (Sept. 25, 1996) (determining that it was proper for the school board to meet in executive session to consider scholarship applications, since the board had to review academic transcripts and parents’ tax returns, which documents were exempt from disclosure under FOIA).

7. 29 Del. C.§ 10004(b)(7): “The hearing of student disciplinary cases unless the student requests a public hearing.”

8. 29 Del. C.§ 10004(b)(8): “The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing.”

9. 29 Del. C.§ 10004(b)(9): “Personnel 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.” See, e.g.,Del. Op. Att’y Gen., No. 99-ib05 (May 12, 1999); Del. Op. Att’y Gen., No. 99-ib03 (Apr. 28, 1999). But see Del. Op. Att’y Gen., No. 02-ib17 (Aug. 6, 2002) (“personnel matters” does not include discussions relating to the mechanics of the selection process and criteria for a new school board superintendent). This exemption does not apply to independent contractors hired by a public entity. Del. Op. Att’y Gen., No. 05-ib02 (Jan. 12, 2005); Del. Op. Att’y Gen., No. 05-ib14 (June 8, 2005).

b. Eleven mandatory exemptions:

1. 29 Del. C.§ 10004(h)(1): Grand juries.

2. 29 Del. C.§ 10004(h)(2): Petit juries.

3. 29 Del. C.§ 10004(h)(3): Special juries.

4. 29 Del. C.§ 10004(h)(4): The deliberations of any court.

5. 29 Del. C.§ 10004(h)(5): The Board of Pardons and Parole.

6. 29 Del. C.§ 10004(h)(6): Public bodies having only one member.

7. 29 Del. C.§ 10004(h)(8): In certain circumstances the Violent Crimes Compensation Board may close a meeting.

8. 29 Del. C. § 10004(h)(9): Deliberations of the State Human Relations Commissions Industrial Accident Board and the Tax Appeals Board for cases governed by the APA.

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B. Any other statutory requirements for closed or open meetings

Persons may be removed from a meeting who are willfully or seriously disruptive of the conduct of the meeting. 29 Del. C. § 10004(d).

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C. Court mandated opening, closing

Courts may not create exemptions to open meetings that are not found in the Act. 29 Del. C. § 10004(a).

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Hearings on student disciplinary cases are closed, unless the student requests that the meeting be open. 29 Del. C. § 10004(b)(7), (9).

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IV. Procedure for asserting right of access

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A. When to challenge

FOIA provides that a citizen complaining of a violation of the open meeting law has a right to challenge the validity “of any action of a public body by filing suit within 60 days of the citizen’s learning of such action but in no event later than 6 months after the date of the action.” 29 Del. C. § 10005(a). The Attorney General has declined to pursue any FOIA complaint where the act complained of took place more than six months prior to the date of the complaint. Del. Op. Att’y Gen., No. 00-ib05 (Feb. 18, 2000) (stating that since the meeting that is the subject of the complaint occurred more than six months ago, the Attorney General could not take any further action with regard to the complaint); see also Del. Op. Att’y Gen., No. 01-ib10 (June 12, 2001) (requiring a council “to begin the decision-making process anew” in order to remedy violations of the open meetings laws).

V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

The Attorney General has also determined that “FOIA does not require a public body to allow members of the public to speak during a public meeting,” but if it does permit public comment, “then it must treat members of the public fairly and even-handedly.” Del. Op. Att’y Gen., No. 17-IB07 (Mar. 28, 2017); Del. Op. Att’y Gen., No. 04-IB13 (June 1, 2004).

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary