Records Requests
Q: What is a public record?
The definition of “public record” is broad. It includes all information of a “public body” contained in physical documents or stored in electronic format that relates in any way to public business or public purposes, or is of public interest. A “public body” is defined at 29 Del. C. § 10002(k). Most state, county, and municipal government bodies are public bodies, but the statute contains two separate requirements, and whether a body qualifies as a public body depends on application of those two requirements to the specific body. Delaware courts are not public bodies and have their own rules for accessing court records. For additional information about public bodies, see the Manual.
Certain categories of records are excluded from the definition of public record. For example, trade secrets, investigatory files compiled for civil or criminal law-enforcement purposes, and certain personnel and medical information are exempt. See 29 Del. C. § 10002(o) for a full list of the exemptions.
Q: How does a citizen make a request for public records?
A FOIA request must be made in writing to the appropriate public body. The State of Delaware has a FOIA request form that may be electronically submitted through an online portal to various state entities. A FOIA request form is also available in PDF. The standard form is not required. However if a citizen is not using the standard form, the request must be in writing, include a description of the requested records, provide the necessary contact information of the requestor, and comply with the public body’s FOIA policy. All requests must adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort. A requesting citizen is encouraged to be as specific as possible when describing records to assist the public body in locating responsive records.
Q. How long does a public body have to respond to a FOIA request?
FOIA requires that a public body respond to a request for records as soon as possible, but no more than 15 business days after the request is received. A public body may respond by providing or denying access to the records, or if the request is for voluminous records, requires legal advice, or is for records in storage or archived, the public body may respond by citing one of these reasons for delay and providing a good faith estimate of the time frame in which a response will be provided.
Q: What fees can a public body assess for processing a FOIA request?
Public bodies may charge copying and administrative fees for processing a FOIA request. The specific fees set forth in the FOIA statute apply unless the public body has adopted a different fee structure in its code. The FOIA statute provides for the following fees. The first 20 pages of standard-sized, black and white copies are free of charge. For standard-sized, black and white copies exceeding 20 pages, the fees are $.10 per sheet or $.20 for a double-sided sheet. For microfilm/microfiche, color copies, and other sizes, the specific copying fees are set forth in 29 Del. C. § 10003(m). The public body may also charge administrative fees incurred in providing a response, including staff time associated with processing the request, but excluding any fees for the public body’s legal review of whether a record is exempt. For more information about administrative fees, see 29 Del. C. § 10003(m) and the Manual.
Q: Does FOIA require a public body to create or retain a public record?
FOIA does not require a public body to create a record that does not already exist in response to a FOIA request. FOIA does not require a public body to retain public records. Public record retention requirements are a separate set of laws governing a public body’s obligations to maintain its records.
Q: Does a public body have to answer questions posed in a records request?
FOIA’s purposes are to allow access to existing public records and to permit viewing of public meetings. FOIA does not require a public body to answer questions in response to a FOIA request.
Open Meetings
Q: What is an open meeting?
A meeting is defined as “a formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.” 29 Del. C. § 10002(j). All meetings of a public body, with certain exceptions, are open for the public to attend.
Q: Are there any meetings of a public body that the public is not permitted to attend?
The public may not attend an executive session of any public body. Also, the public may not attend meetings of certain entities, such as the Board of Pardons and Parole, grand, petit, and special juries and public bodies consisting of one person, such as a mayor. See 29 Del. C. § 10004(h) for the full list of public bodies exempt from the open meeting requirements of FOIA. Members of the public may be asked to leave a public meeting for being disruptive.
Q: When may a public body call an executive session?
A public body may call an executive session to discuss certain non-public matters designated in 29 Del. C. § 10004(b). For example, a public body may meet in executive session to discuss personnel matters or an individual’s qualifications to hold a job or pursue training.
Q: Does a public body have to keep minutes of its meetings?
A public body must maintain minutes of its public meetings and its executive sessions. Those requirements are set forth in 29 Del. C. § 10004(f).
Q: How can the public find out about open meetings?
A public body must post notice of the date, time, place of meeting, and whether the meeting will be conducted under 29 Del. C. § 10006A at least seven days in advance. The notice must include an agenda listing the major items of public business to be discussed, if one is available. If an agenda is not available at the time of posting, the public body must post the agenda no later than six hours prior to the meeting stating the reason for the delay. Unless exempted by 29 Del. C. § 10006A(e), the notice must be clearly posted at the public body’s principal office, or if there is none, where the public body regularly meets. Public bodies of the State executive branch also post their meeting notices on the State of Delaware Public Meeting Calendar. Many other public bodies also post their meeting notices on their websites.
Q: Are meetings required to have a public comment period?
Meetings that are open to the public must include time for public comment in accordance with 29 Del. C. § 10004(a)(2). However, meetings of a public body of the General Assembly that are governed by the rules of proceeding adopted under Section 9, Article II of the Delaware constitution are not required to hold a time for public comment. A public body may impose reasonable time, place and manner restrictions on the length of the public comment period and the amount of time allotted for each public comment.
FOIA Petition Process
Q: What can a citizen do if he or she believes a public body has violated FOIA or is about to violate FOIA?
A citizen may petition the Attorney General for a determination of whether a violation has occurred or is about to occur. The DOJ’s authority is limited to this determination and does not include the authority to issue injunctions or assess penalties against a public body for violating FOIA. Instructions for filing a petition are available on this page under “How to File a FOIA Petition with the DOJ.” In certain circumstances, a citizen may file a lawsuit subject to the statutory requirements. 29 Del. C. § 10005. If considering a lawsuit, a citizen is encouraged to promptly contact a private attorney to discuss his or her options.
Q: What is the process once the DOJ receives a petition alleging that a public body has violated FOIA or is about to violate FOIA?
Upon receipt of a petition, the DOJ will review the petition for completeness and request any additional information that may be necessary. Once complete, the DOJ will contact the public body, if necessary, to provide a written response to the allegations contained in the petition. Some matters may be decided without a response from the public body. After reviewing all relevant information, the DOJ will issue a written determination to the parties. The Rules of Procedures for FOIA Petitions and Determinations outline the petition process in detail.
Q: Can the DOJ provide a citizen with legal advice?
The DOJ cannot provide legal advice to citizens. All legal questions about FOIA should be directed to a private attorney.
