In general, reporters call the Delaware law “decent” when it comes to access electronic records. The biggest problem is that reporters find they have to wrangle with agencies over what constitutes a “reasonable” fee.

A recent access win for reporters came in October 2002 when a superior court judge ruled that The (Wilmington) News Journal was entitled to information that would enable it to recognize repeat offenders within raw data maintained by the Delaware Justice Information System. State officials maintained the newspaper could deduce offenders’ identities if given the information, raising privacy concerns. The judge disagreed and ruled that the newspaper should be given the information. But the judge also ruled that the newspaper is not entitled to computerized records on cases that don’t end in convictions, records involving minors, records on the location of an arrest or those that identify police, parole or probation officers.

The law. The statute does not specifically address electronic information. Rather, the Freedom of Information Act defines a public record as “information of any kind . . . regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.” Del. Code Ann. tit. 29, § 10002(d).

It applies to any agency or political subdivision created by the legislature that disburses or receives state funds, or that makes recommendations to the legislature. The Administrative Procedure Act allows access to “any documents, papers and other materials considered by the agency in taking agency action.” It sets procedures for state agencies that make regulations, adjudicate cases or issue licenses. A requester may proceed under either law, but the FOI Act creates more affirmative rights for a requester than the APA. Del. Code Ann. tit. 29, § 10112(a)(2).

Under Delaware corporate law, the department of state will charge for photocopies, microfiche or electronic image copies of corporation records unless Delaware’s Freedom of Information Act or statute provide otherwise. Del. Code Ann. tit. 8, § 391(c).

Cases & opinions. The Delaware Attorney General has addressed two potential problems with public access to electronic records. First, public access to computer databases that contain exempt information (such as criminal records or information the disclosure of which would violate the individuals privacy) will not be granted. The Attorney General has recommended to one department that when designing such computer systems, the database should be segregable to permit public access to those parts not exempted by the Act or otherwise. See Del. Op. Att’y Gen., No. 91-I013 (Apr. 17, 1991). Second, a request for access to a database may present an administrative burden to redact exempt material. The request may be denied as a result.

Fees. Under the FOI Act, “reasonable expense” for copying may be charged. Del. Code Ann. tit. 29, § 10003(a). Each public body must “establish rules and regulations regarding access to public records as well as fees charged for copying of such records.” § 10003(b). The secretary of state may issue photocopies and electronic image copies of corporate records filed with the state for a fee of $5 for the first page and $1 for each additional page. Del. Code Ann. tit. 8 § 391(c). Additional fees may be collected for “express” completion of a request for corporate records. § 391(h).

To obtain from the Secretary of State electronic image copies of instruments on file, or instruments, documents or other papers not on file, one must pay a fee of $5 for the first page and $1 for each additional page. 8 Del. Code Ann. tit 8, § 391(c). Certification of such documents costs an additional $20. If the electronic image copies of such records are requested to be completed within two hours on the same day of the request, there is an additional fee of up to $500. If the electronic image copies of such records are requested to be completed with the same day as the day of the request, there is an additional fee of up to $200. If the electronic image copies of such records are requested to be completed within a 24-hour period from the time of the request, there is an additional fee of up to $100. 8 Del. C. § 391(h). However, as of March 2003, such electronic image copies were not yet available online from the office of the secretary.