Delaware Department of Justice
Attorney General
Kathy Jennings

96-IB03 RE: Freedom of Information Act Document Request 29 Del. C. § 10003

Del. Op. Atty. Gen. 96-IB03 (Del.A.G.), 1996 WL 40925
(denying request of information regarding judicial appointments because the judiciary is not a “public body” within the meaning of FOIA)
Office of the Attorney General
State of Delaware
Opinion No. 96-IB03
January 2, 1996
RE: Freedom of Information Act Document Request 29 Del. C. § 10003
*1 Samuel S. Guy, Esq.
Delaware State Conference of the NAACP
P.O. Box 25464
Wilmington, DE 19899-5464
Dear Mr. Guy:
On behalf of the Delaware Supreme Court and the Municipal Court of Wilmington, I write to answer your letter of December 7, 1995, requesting “any correspondence you have received or sent regarding the vacancy in the Municipal Court. Your letter asks that the request cover “the time period form (sic) April 1995 up until the time you wrote JNC asking them to begin taking steps to fill the vacancy in Municipal court(sic)(emphasis added).” You also asked for “… the one (1) page letter from the Chief Justice directed to the Governor wherein the Chief Justice indicates or mentions matters related to a belief that vacancy should be filled and the negative consequences of the vacancy.”
The form of your letter appears to suggest that the FOIA request is directed only to the Governor since it asks for correspondence during a time period from April 1995 until “you wrote” (apparently meaning the Governor) to the JNC, a body established by the Governor as the result of an executive order. That interpretation would be consistent with your further request for the Governor to provide a copy of the letter from the Chief Justice to the Governor. Since your letter logically can be construed to be a request only to the Governor, the Supreme and Municipal Courts need not reply since you have already received Mr. Strine’s letter of December 20, 1995, on behalf of the Governor refusing your FOIA request.
To the extent your letter does in fact request information or documents in the possession of the Supreme Court or the Municipal Court, your request is denied for the following reasons:
1. The courts are not public bodies within the meaning of 29 Del. C. § 10002(a) and therefore do not fall within the provisions of 29 Del. C. Ch. 100.The definition of public body as it appears in 29 Del. C. §10002 was amended as a result of the Delaware Supreme Court’s decision in Delaware Solid Waste Authority v. News Journal, Del. Supr., 480 A.2d 628, 632 (1984). The definition of public body as it appears in the current version of §10002(a) is as follows:
§10002. Definitions.
(a) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.
*2 The amendment in 1985 to §10002(a) by the General Assembly changed the definition of “public body” expressly to include all standing committees established, appointed or empowered by public bodies. Applying plain rules of statutory construction to the provisions of 29 Del. C. §10002, this office already has ruled in Attorney General Opinion No. 94-IO11 (March 7, 1994) that it believes the Delaware courts are outside the scope of the Act because, inter alia, the courts are established by the Constitution and not by the General Assembly (Op. at 2). Attorney General Opinion No. 94-IO11 held that court records such as the database of the Administrative Office of the Courts are not subject to the Act even though the Administrative Office of the Courts was created by the General Assembly.
2. As noted by Mr. Strine, you initiated litigation against Governor Carper regarding the exercise of his discretionary appointment powers with respect to the judicial nominating process. The appeal of that litigation is now pending in the Supreme Court. Matters which apply to the proceedings or the deliberations of any court are specifically excluded from FOIA under 29 Del. C. § 10004(h)(4). Accordingly any documents which you seek for use in that litigation would not be disclosable.
3. Your request is also denied because it is inconsistent with the separation of powers doctrine of the Delaware Constitution since matters relating to the appointment of judges are vested solely in the Governor upon the advice and consent of the Senate and is a process in which the judiciary is specifically excluded.
Very truly yours.
Michael J. Rich
State Solicitor
Del. Op. Atty. Gen. 96-IB03 (Del.A.G.), 1996 WL 40925

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