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.

29 Del. C. § 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. 29 Del. C. § 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. 29 Del. C. § 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. 29 Del. C. § 10005(f). Finally, the amendment restricts the ability of public bodies to hold meetings outside the State of Delaware. 29 Del. C. § 10004(g).

The General Assembly appears receptive to curing defects in the Act as they are discovered, primarily as a result of judicial decisions. State officials, for the most part, are complying with the terms of the Act, though a number of early cases arose because state officials were unaware of the terms of the Act. Finally, 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).

STRUCTURE OF DELAWARE'S ACT

Delaware's Act is very broad and covers both records and meetings.  In order to understand the scope of the Act, it is necessary to consider four important definitions.

DEFINITIONS

I. Public Body.  As defined by the Act, only a "public body" creates records or holds meetings that are subject to the Act.

A. "Public body" includes the following groups:

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. 29 Del. C. § 10002(c).

A variety of public entities have been found to be "public bodies" subject to FOIA. See, e.g., New Castle County Vocational-Technical Educ. Ass'n v. Bd. of Educ., 1978 WL 4637 (Del. Ch. Sept. 25, 1978) (school board "is unquestionably a public body"); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (Delaware Association of Professional Engineers); Del. Op. Att'y Gen., No. 92-C011 (Apr. 13, 1992) (Council on Banking); Del. Op. Att'y Gen., No. 94-I025 (Aug. 23, 1994) (Thoroughbred Racing Commission).

B. To qualify as a "public body," the above-listed entity must perform one of the following functions: (1) be supported in whole or in part by any public funds; (2) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (3) be 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(c).

C. The General Assembly of the State of Delaware is excluded from the definition of public body. 29 Del. C. § 10002(c).

II. Public Business. Records or meetings that relate to the "public business" are subject to the Act. The Act defines the phrase "public business" as "any matter over which the public body has supervision, control, jurisdiction or advisory power." 29 Del. C. § 10002(e). See, e.g., Del. Op. Att'y Gen., No. 96-ib32 (Oct. 10, 1996) (addressing whether public business was conducted at a nonpublic meeting); Del. Op. Att'y Gen., No. 96-ib02 (Jan. 2, 1996) (same).

III. Public Funds. The phrase "public funds" is defined as "funds derived from the State or any political subdivision of the State." 29 Del. C. § 10002(f).

IV. Public Record. Only "public records" are subject to the Act.

A. The act defines "public record" as "information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(g). Once a document is presented to a public body for review, it becomes a public record even though it is in draft form and may be subject to further change. Del. Op. Att'y Gen., No. 05-ib13 (May 9, 2005) (finding the Town of Laurel violated the public records requirements of FOIA by not providing a copy of the draft employment contract with the Town Manager after the council voted at a public meeting to approve the contract subject to review by legal counsel).

B. The open records portion of the Act contains sixteen statutory exemptions, which also include all "records specifically exempted from public disclosure by statute or common law." 29 Del. C. § 10002(g)(6). For example, Delaware Superior Court has adopted a constitutional exemption for public records that are subject to a constitutional executive privilege. Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995).

ADMINISTRATIVE PROCEDURES ACT

Delaware's Administrative Procedures Act (the "APA") contains a section dealing with release of public information that requires agencies to release most information but contains exemptions that do not appear in the Act. 29 Del. C. § 10112. For example, documents related to the agency's internal procedures and personnel practices may not be released under the APA but are subject to disclosure under the Act. However, confidential or privileged material is not required to be released under either statute. See 29 Del. C. § 10112(b)(4). The Delaware Code defines which agencies are subject to the APA. 29 Del. C. § 10161.

Because the Act is broader in scope and provides for payment of attorneys' fees, it is recommended to proceed under the Act rather than the APA.