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In 1977, the General Assembly adopted Delaware’s Freedom of Information Act (FOIA) to ensure that government is open and accountable to its citizens.
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.
29 Del. C. § 10001.
The Delaware FOIA statute is contained in the Delaware Code at 29 Del. C. § 10001 -10007.
Delaware citizens may petition the Delaware Department of Justice (“DOJ”) for a determination of whether a public body has violated or is about to violate FOIA. Written determinations are issued to the parties as a letter or Attorney General Opinion. The Attorney General publishes opinions on the Attorney General Opinions webpage.
The DOJ publishes a Policy Manual for FOIA Coordinators that is updated every two years. This Manual was most recently updated in November 2019.
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(h). 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(l) for a full list of the exemptions.
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. This standard form is not required. 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.
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.
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.
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.
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.
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 either in person or by video-conferencing.” 29 Del. C. § 10002(g). All meetings of a public body, with certain exceptions, are open for the public 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.
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.
A public body must maintain minutes of its public meetings and its executive sessions. Those requirements are set forth in 29 Del. C. § 10004(g).
A public body must post notice of the date, time, and place of a regular meeting 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. Notice must be clearly posted at the public body’s principal office, or if there is none, where the public body regularly meets. Noncounty and nonmunicipal public bodies, in addition to public bodies of the State executive branch, must post their meetings on the State of Delaware Public Meeting Calendar.
FOIA allows the public to observe open meetings, but it does not require a public body to allow public comment during a meeting. Each public body may establish its own rules and procedures for permitting public comment in open meetings, which must meet certain legal standards regarding fairness and non-discrimination. The DOJ encourages public bodies to allow for a public comment period at public meetings.
A citizen may petition the Attorney General for a determination 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.
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.
The DOJ cannot provide legal advice to citizens. All legal questions about FOIA should be directed to a private attorney.
To file a FOIA request with the DOJ, citizens may submit this form and select “Attorney General’s Office” as the public body. The DOJ also accepts written FOIA requests via email, fax, and U.S. Mail. The contact information for each is below. The request must include the requesting party’s name and contact information, including home or business address, and a detailed description of the records sought.
For more information, the DOJ’s policy regarding FOIA requests is available here.
Delaware Department of Justice
Attn: FOIA Coordinator
820 N. French Street
Wilmington, DE 19801
To file a FOIA request with an agency or department of the State, visit the State of Delaware FOIA request portal by selecting the appropriate public body. To file a FOIA request with a county, municipality, or other public body in Delaware, contact their main office or visit their website for more information.
If a citizen believes that a public body has violated or is about to violate FOIA, the citizen may petition the Attorney General for a determination whether a violation occurred. Petitions must be in writing and include the following: (1) a description of how a public body violated FOIA or is about to violate FOIA; and (2) all the documents supporting this alleged violation, such as email correspondence with the public body or meeting agendas or minutes, if appropriate. Petitions alleging that a public body improperly responded to a FOIA request must include a copy of the original request (if available) and the public body’s response.
The FOIA Petition Rules of Procedures are available here.
To submit a petition, clearly mark it to the attention of the DOJ FOIA Coordinator and submit via fax, email or mail, as set forth below.
All petitioners are encouraged to submit petitions by email to email@example.com and to supply an email address in their contact information, whenever possible.
Delaware Department of Justice
Attn: FOIA Coordinator
820 N. French Street
Wilmington, DE 19801