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Delaware

Open Government Guide

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Updated by RCFP staff based on an earlier edition by Chad M. Shandler, Laura D. Hatcher, Richards, Layton & Finger, Wilmington, Del.

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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

  1. Public Body.  As defined by the Act, only a "public body" creates records or holds meetings that are subject to the Act.
  2. "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).

  1. 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).
  2. The General Assembly of the State of Delaware is excluded from the definition of public body. 29 Del. C. § 10002(c).
  3. 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).

  1. Public Record. Only "public records" are subject to the Act.
  2. 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).
  3. 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.

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Open Records

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I. Statute

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A. Who can request records?

Any Delaware citizen and non-citizen may request records. 29 Del. C. § 10001. However, an agency may reject requests from non-citizens. See McBurney v. Young, 569 U.S. 221 (2013); see also Del. Op. Att’y Gen. 17-IB39, 2017 WL 3628776, at *1 (Aug. 16, 2017) (no FOIA violation where Office of the State Treasurer denied a FOIA request on the basis that the requesting party was not a citizen of Delaware); Del. Op. Att’y Gen. 17-IB14, 2017 WL 3426252, at *1 (July 6, 2017) (no FOIA violation where New Castle County denied a FOIA request on the basis that the requesting party was not a citizen of Delaware); Del. Op. Att’y Gen. 16-IB20, 2016 WL 5888776, at *1 (Sept. 30, 2016) (“Our determination is that public bodies are only required to comply with FOIA when the requesting party is a citizen of the State of Delaware. In all other cases, public bodies may, and are encouraged to, fulfill FOIA requests. Because compliance with Delaware’s FOIA is mandatory only with respect to citizens of the State of Delaware, we conclude that [the Office of the Delaware State Banking Commissioner] did not violate FOIA when it denied your . . . request for records on the basis that you are not a Delaware citizen.”).

Custodian of records. FOIA places responsibility for providing or denying access to public records on the "custodian" of the records. See 29 Del. C. § 10003(a) ("all public records shall be open to inspection and copying . . . by the custodian of the records for the appropriate public body."). Delaware's FOIA, however, does not define the term "custodian."

Importantly, a "public body" must actually receive a FOIA request in order to trigger any legal obligation to make the records available. Del. Op. Att'y Gen., No. 04-ib04 (Feb. 5, 2004) (noting that as a general rule, an attorney is not the custodian of records that may be in the possession of a client but concluding that by exercising authority both to release some records and claim exemptions for others on behalf of the producing party, the attorney became the custodian of records.). The burden of proof is on the custodian of records to justify the denial of access to records, 29 Del. C. § 10003(b) and (c), and the public body must establish rules and regulations regarding access to such records and the fees charged for copying such records.  29 Del. C. § 10003(d).

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1. Status of requester

Any citizen of Delaware, including corporate citizens, may request disclosure pursuant to the Act. 29 Del. C. § 10001; Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991). Non-Delaware citizens may not request disclosure under the Act. Del. Op. Att'y Gen., No. 96-ib01 (Jan. 2, 1996).

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2. Purpose of request

The requester's purpose (e.g., "commercial purpose") cannot affect his right to receive records. New Castle County Vocational-Technical Educ. Ass'n v. Board of Educ., 1978 WL 4637 (Del. Ch. Sept. 25, 1978) (declining to find as a basis for excluding a request the fact that the request was made by a labor organization).

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3. Use of records

The Act does not make any restrictions on subsequent use of information, provided, however, that an agency releasing documents under the APA may impose reasonable precautions to preserve the integrity and security of the document. 29 Del. C. § 10112(b)(1).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

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1. Executive branch

The records of the executives themselves (governor, mayor, other chief executive person or body) are subject to the Act, unless protected, for example, by executive privilege. See Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995); see definition of "public body." 29 Del. C. § 10002(c). The records of all functions of the executive branch are subject to the Act. See 29 Del. C. § 10002(e) (defining "public business").

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2. Legislative bodies

Legislative bodies are covered by the Act. However, the General Assembly, or any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary is specifically exempted. 29 Del. C. § 10002(c); News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978). For example, the Wilmington City Council is covered. News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).

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3. Courts

The Act defines "public body" to include most executive and legislative agencies or entities established by an Act of the General Assembly. 29 Del. C. § 10002(c). Courts are probably not covered under the "records" section of the Act because most courts are a creation of the Constitution and not the General Assembly. See Del. Op. Att'y Gen., No. 95-ib01 (Jan. 18, 1995). However, Family Court, Justice of the Peace Court and the Administrative Office of the Courts are created by the legislature and may be subject to the Act. The Delaware Constitution guarantees that "[a]ll Courts shall be open." Del. Const. of 1897, art. I, § 9. "The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity . . . ." Del. Const. of 1897, art. I, § 5. Issues relating to access to court records at common law and under the state and federal constitutions are beyond the scope of this outline.

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4. Nongovernmental bodies

The Act covers bodies "established . . . appointed . . . or otherwise empowered by any state governmental entity" which: (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are 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). The University of Delaware and Delaware State University are not included, except that their respective Boards of Trustees are considered to be "public bodies." 29 Del. C. § 10002(d). University documents relating to the expenditures of public funds are "public records," and each meeting of the full Board of Trustees of the University of Delaware and Delaware State University are a "meeting." Id.

Nongovernmental groups whose members include governmental officials are not covered by the Act simply because governmental officials are members. Nongovernmental groups may qualify if they fall within the definition of public body.

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5. Multi-state or regional bodies

Multistate or regional bodies (such as planning authorities) are covered by the Act if the entities (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are 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); see Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984).

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6. Advisory boards and commissions, quasi-governmental entities

Advisory boards and commissions and quasi-governmental entities are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are 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).

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7. Others

Other bodies to which governmental or public functions are delegated are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are 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). For example, a committee appointed by a public body established by the General Assembly is now required to hold open meetings, which corrects a defect in the Act pointed out by the Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co., 480 A.2d 628 (Del. 1984).

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

All "public records" are subject to disclosure under the Act. 29 Del. C. § 10002(g). "Public record" is defined 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). ("Public business" means any matter over which the public body has supervision, control, jurisdiction or advisory power. 29 Del. C. § 10002(e)).

Personal notes, however, have not been subject to public access under FOIA. Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002); Del. Op. Att'y Gen., No. 02-ib30 (Dec. 2, 2002).

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2. What physical form of records are covered

Not specified; see above.

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3. Are certain records available for inspection but not copying?

Public records must be maintained in public offices so that they may be available for copying and inspection by Delaware citizens. Del. Op. Att'y Gen., No. 94-I030 (Oct. 19, 1994). See Del. Op. Att'y Gen., No. 00-ib02 (Jan. 10, 2000) (concluding that a public office cannot be liable for a citizen's failure or refusal to avail him or herself of the times and/or dates set aside for public viewing and copying of records). However, certain records, like a presentence report, pre-parole report, supervision history and all other case records obtained in the discharge of official duty by any member or employee of the Department of Corrections are privileged and shall not be disclosed except that the court or Board of Pardons may, in their discretions, permit the inspection of the reports by the offender or the offender's attorney.  No person currently incarcerated shall have access to such records.  11 Del. C. § 4322(a).

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4. Telephone call logs

Not addressed, but presumably open.

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5. Electronic records (e.g., databases, metadata)

The Delaware Freedom of Information Act does not specifically address access to electronic records. However, the Act defines "public records" to include all information "regardless of the physical form or characteristic by which such information is stored, recorded or reproduced." 29 Del. C. § 10002(g). Thus, the Act reaches public records held in electronic forms, and in fact fields of electronic information have been disclosed to requesting parties.

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 screen the database for exempt material. The request may be denied as a result.

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a. Can the requester choose a format for receiving records?

The Act does not specifically address whether the requester may choose a format. Each public body that is required to allow public access to records is responsible for issuing its own rules and regulations regarding access to public records. Under Delaware corporate law, access to documents retained by the Secretary of State may only be issued as photocopies, microfiche or electronic images. 8 Del. C. § 391(c).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Not specified.

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c. Does the existence of information in electronic format affect its openness?

The Act treats electronic information just like any other information. 29 Del. C. § 10002(g). The Act does not make any distinction between records distributed in manual and computer storage systems. Del. Op. Att'y Gen., No. 97-ib06 (Mar. 17, 1997).

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d. Online dissemination

Not specified.

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

To the extent that software contains or is proprietary or trade secret information, such software is exempt from disclosure.  29 Del. C. § 10002(g)(2); Del. Op. Att'y Gen., No. 06-ib17 (Aug. 21, 2006).

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The Act provides that "[a]ny reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy." 29 Del. C. § 10003(a). The Act further provides, "it shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records." 29 Del. C. § 10003(d). See also Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991) (holding that the requirement to establish rules and regulations, and fees, is mandatory). The public agency must abide by its regulations pertaining to fees, unless the public agency gives a requester adequate notice of a deviation from its fee regulation. Notice has been held inadequate when it was printed in a town newsletter and posted on the town website. Del. Op. Att'y Gen., No. 04-ib08 (Feb. 9, 2004). Rules and regulations, however, found to violate FOIA's mandate of "easy access to public records" are not permissible. See Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002). See also Del. Op. Att'y Gen., No. 02-ib31 (Dec. 6, 2002) (concluding that charging $10.00 for a 68-page land-use plan was permissible); Del. Op. Att'y Gen., No. 02-ib10 (Apr. 24, 2002) (concluding that a charge of 50 cents per page is reasonable). Agencies subject to the APA are required to make a "reasonable charge" for copying documents. 29 Del. C. § 10112(b)(5).

Typically, a determination of "reasonable cost" is something that the parties resolve. The Delaware Superior Court has indicated its willingness to help parties determine "reasonable cost" absent the parties' ability to agree. Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 2005 WL 2660049 (Del. Super. Sept. 6, 2005).

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2. Particular fee specifications or provisions

The Delaware Attorney General has concluded that an agency may charge a person requesting documents for the time spent by the public employees conducting searches of documents and copying such documents, at least where the requester has decided not to personally conduct such searches and copying. See Del. Op. Att'y Gen., No. 95-ib08 (Feb. 6, 1995). To charge for labor and computer processing time, a public body must have a written policy in place.  29 Del. C. § 10003(d); Del. Op. Att'y Gen., No. 07-ib19 (Aug. 28, 2007); Del. Opp. Att'y Gen., No. 02-ib10 (Apr. 24, 2002) (the school district did not have a written rule regarding charges for the cost of retrieving information from computer databanks). However, if the agency regulation only indicates that duplication charges will be made and does not indicate that a charge will be made for the time of the government employee as well, the requester may not be obligated to pay such charges. Id. See also Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991).

Each agency establishes its own fee structure for duplication charges. See Del. Op. Att'y Gen., No. 94-I013 (Mar. 15, 1994).

FOIA does not require an answering party to pull together information from various forms and arrange it in a required format to create a new public record that does not already exist. Del. Op. Att'y Gen., No 99-ib12 (Sept. 21, 1999); Del. Op. Att'y Gen., No. 00-ib18 (Oct. 31, 2000); Del. Op. Att'y Gen., No. 05-ib08 (Apr. 4, 2005); Del. Op. Att'y Gen., No. 03-ib24 (Oct. 30, 2003); Del. Op. Att'y Gen., No. 03-ib13 (June 2, 2003); Del. Op. Att'y Gen., No. 04-ib14 (June 28, 2004); Del. Op. Att'y Gen., No. 02-ib18 (Aug. 19, 2002); Del. Op. Att'y Gen., No. 02-ib03 (Feb. 1, 2002).

Delaware's FOIA is silent on how quickly a public body must respond to a public records request, other than to require "[r]easonable access." 29 Del. C. § 10003(a). It has been determined — by analogy to the federal FOIA — that "reasonable access" means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991). See also Del. Op. Att'y Gen., No. 03-ib26 (Nov. 13, 2003). This 10-day response time may be extended: "(1) When there is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) when there is a need to search for, collect, and examine a voluminous amount of separate and distinct records; which are demanded in a single request; or (3) when there is a need for consultation, which shall be conducted with all practicable speed, with another agency or with agency counsel." Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991).

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3. Provisions for fee waivers

An agency may provide for the waiver of duplication fees where special circumstances arise; for example, if the public interest would be served by such a waiver. See Del. Op. Att'y Gen., No. 94-I013 (Mar. 15, 1994).

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4. Requirements or prohibitions regarding advance payment

Not specified.

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5. Have agencies imposed prohibitive fees to discourage requesters?

Expense cannot be used as an obstacle to the "easy access to public records." Del. Op. Att'y Gen., No. 02-ib34 (Dec. 21, 2002). A $.50 per page charge for duplication was found not to be per se unreasonable. See Del. Op. Att'y Gen., No. 94-I013 (Mar. 15, 1994); see also Del. Op. Att'y Gen., No 95-ib08 (Feb. 6, 1995).

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6. Fees for electronic records

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E. Who enforces the Act?

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1. Attorney General's role

By petition of a citizen denied access to information, the Attorney General can determine whether a violation has occurred. 29 Del. C. § 10005(e).

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2. Availability of an ombudsman

Not applicable.

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3. Commission or agency enforcement

Not applicable.

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F. Are there sanctions for noncompliance?

A court may award attorneys' fees and costs to a successful defendant if the action was frivolous or was brought solely for the purpose of harassment. 29 Del. C. § 10005(d).

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

Not addressed.

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3. Records retention requirements

Not addressed.

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

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1. Character of exemptions

There are 16 specific exemptions contained within the Act. Additionally, records of the General Assembly and certain records of the University of Delaware and Delaware State University are excluded. 29 Del. C. § 10002(d). See Del. Op. Att'y Gen., No. 00-ib08 (May 24, 2000) (holding that any documents relating to the spending of state funds for those infrastructure improvements are "public records" under FOIA, and that the University was required to make them available for inspection and copying.) Given the Act's commitment to making records available, the 16 exemptions are construed narrowly and specifically and thus are not easily abused exemptions. See Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984); News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).

The Act preserves all common law and other statutory exemptions to public disclosure. 29 Del. C. § 10002(g)(6).

Whether they are mandatory or discretionary is not specified, but the statute says exempt records "shall not be deemed public." 29 Del. C. § 10002(g).

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 FOIA. See, e.g,. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980).

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2. Discussion of each exemption

a. 29 Del. C. § 10002(g)(1): "Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy." See Gannett Co. v. Christian, 1983 WL 473048 (Del. Super. Aug. 19, 1983) (disclosure of teacher salary information not an invasion of privacy). For example, Social Security numbers need not be disclosed. Del. Op. Att'y Gen., No. 95-ib03 (Jan. 25, 1995). Further, withholding taxes, Social Security declarations and elective declarations are not required to be disclosed. Likewise, score sheets of interviewees during the applicant selection process for a new driver's education instructor have been exempted from disclosure. Del. Op. Att'y Gen., No. 05-ib20 (July 27, 2005). However, the names of the presidents and the contact information for corporations have been held to be public information under FOIA. Del. Op. Att'y Gen., No. 03-ib01 (Jan. 10, 2003).

For purposes of construing Delaware's FOIA, "personnel file" is defined as "any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records." Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002).

b. 29 Del. C. § 10002(g)(2): "Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature." This exemption has been construed to protect "individuals from a wide range of embarrassing disclosures." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Del. Op. Att'y Gen., No. 87-1031 (Nov. 4, 1987). For example, the "release of information regarding one's assets, profits and losses, stock holdings, loans and collateral" are confidential financial information exempt from disclosure under FOIA. Del. Op. Att'y Gen., No. 87-I031 (Nov. 4, 1987). See also Del. Op. Att'y Gen., No. 96-ib30 (Sept. 25, 1996) (tax returns of parents of children applying for scholarships exempt from disclosure under FOIA). See Del. Op. Att'y Gen., No. 00-ib15 (Oct. 4, 2000) (outlining the trade secret exception).

The FOIA exemption for confidential commercial or financial information may apply "when the government requires a private party to submit information as a condition of doing business with the government." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003) (quoting Judicial Watch v. Export-Import Bank, 108 F. Supp. 2d 19, 27 (D.D.C. 2000)). To fall within the exemption, the government has the burden of showing that disclosure of the information "is likely to cause substantial harm to the competitive position of the person from whom the information was obtained." Id.

c. 29 Del. C. § 10002(g)(3): "Investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue." See Nasir v. Oberly, 1985 WL 189324 (Del. Super. Dec. 5, 1985) appeal dismissed, 508 A.2d 470 (Del. 1986) (statements of witnesses in robbery investigation); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigation files of professional engineers not public). See also Del. Op. Att'y Gen., No. 04-iB20 (Nov. 16, 2004) (exempting an accident report); Del. Op. Att'y Gen. No. 99-ib14 (Nov. 5, 1999) (exempting documents pertaining to a police complaint relating to an unregistered motor vehicle). The exception applies even after the file has been closed. Del. Op. Att'y Gen., No. 99-ib14 (Nov. 5, 1999); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980).

d. 29 Del. C. § 10002(g)(4): "Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person's personal criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature."

e. 29 Del. C. § 10002(g)(5): "Intelligence files compiled for law-enforcement purposes, the disclosure of which could constitute an endangerment to the local, state or national welfare and security."

f. 29 Del. C. § 10002(g)(6): "Any records specifically exempted from public disclosure by statute or common law."  See Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995) (holding that the confidential records of an appointed commission are protected by constitutional and common law doctrine of executive privilege, exempting the records from disclosure); Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002) (holding that the common law work product privilege can except disclosure); Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002) (holding nonmandatory traffic accident reports were not public records). See also Mell v. New Castle County, 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

g. Delaware courts have recognized a common law right of informational privacy, which guards against disclosure by the government of personal information about citizens. See Del. Op. Att'y Gen., No. 01-ib17 (Nov. 19, 2001) (determining that Delaware's FOIA protects the names and addresses of retired public employees because disclosure of that information would invade their privacy). For example, public employees' right of privacy in the records of a legal settlement has been found to outweigh the public interest in disclosure. Del. Op. Att'y Gen., No. 02-ib24 (Oct. 1, 2002). See also Del. Op. Att'y Gen., No. 99-ib02 (Apr. 16, 1999).

h. 29 Del. C. § 10002(g)(7): "Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor."

i. 29 Del. C. § 10002(g)(8): "Any records involving labor negotiations or collective bargaining." The purpose behind this exception is that each side in a negotiation situation wishes to obtain the most favorable terms in the ultimate agreement. Del. Op. Att'y Gen., No. 04-ib16 (Oct. 13, 2004). The disclosure to the public of discussions and proposals that take place on one side during the course of negotiations would obviously entail the disclosure of those strategic matters to the other party with whom negotiations are taking place. Id. (exempting copies of proposed or pending contracts and other documents between the Brandywine School District and Brandywine Education Association).

j. 29 Del. C. § 10002(g)(9): "Any records pertaining to pending or potential litigation which are not records of any court." FOIA's pending/potential litigation exemption is intended to prevent litigants from using "FOIA as a means to obtain discovery which is not available under the court's rules of procedure." Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003). Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003).

The pending litigation exemption "turns on the identity of the requestor and the purpose of the request." Att'y Gen. Op. 03-ib21 (Oct. 6, 2003). The exemption applies when "[i]t is exclusively about litigators and litigants looking for materials that might help them in court." Office of the Public Defender v. Delaware State Police, 2003 WL 1769758, at *3 (Del. Super. Mar. 31, 2003). See Del. Op. Att'y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties); Del. Op. Att'y Gen., No. 04-ib04 (Feb. 5, 2004) (extending the pending litigation exception to Quasi-Judicial proceeding including arbitration); Del. Op. Att'y Gen., No. 03-ib10 (May 6, 2003); Mell v. New Castle County, 835 A.2d 141 (Del. Super. 2003) (exempting documents under the pending litigation exception) See also Del. Op. Att'y Gen., No. 03-ib26 (Nov. 13, 2003).

For the potential litigation exemption to apply, "FOIA requires a two-part analysis: first, litigation must be likely or reasonably foreseeable; and second, there must be a clear nexus between the documents requested under FOIA and the subject matter of the potential litigation." Del. Op. Att'y Gen., No. 03-ib21 (Oct. 6, 2003). "A realistic and tangible threat of litigation is one that can be characterized with reference to objective factors such as: (1) a formal demand letter or some comparable writing that represents the party's claim and manifests a solemn attempt to sue; (2) previous or pre-existing litigation between the parties or proof of ongoing litigation concerning similar claims; or (3) proof that a party has retained counsel with respect to the claim at issue and has expressed an intent to sue." Id. See also Del. Op. Att'y Gen., No. 02-ib32 (Dec. 20, 2002) (concluding that the potential litigation exception does not cover a presuit exchange of letters between potential parties). To invoke this provision there must be a discussion of "litigation strategy." Anticipation of litigation is not enough. Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). Mere possibility that documents may be involved in potential litigation does not shield those documents from public disclosure under this exemption. See Del. Op. Att'y Gen., No. 93-I005 (Mar. 3, 1993).

k. 29 Del. C. § 10002(g)(10): "[M]inutes of executive sessions [and] any record of discussions held in executive session [so long as public disclosure would defeat the lawful purpose for the executive session]." See 29 Del. C. § 10004(f). Chem. Indus. Council of Delaware, Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). This exemption is related to the open meeting requirements of the Act.

l. 29 Del. C. § 10002(g)(11): "Any records which disclose the identity or address of any person holding a permit to carry a concealed deadly weapon; provided, however, all records relating to such permits shall be available to all bona fide law-enforcement officers."

m. 29 Del. C. § 10002(g)(12): "Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used."

n. 29 Del. C. § 10002(g)(13): "Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department's custody."

o. 29 Del. C. § 10002(d)(14): "Investigative files compiled or maintained by the Violent Crimes Compensation Board."

p. 29 Del. C. § 10002(g)(15): "Any photographs, video recordings or audio recordings of a postmortem examination in the possession of the office of the Chief Medical Examiner."

q. 29 Del. C. § 10002(g)(17)a: Certain enumerated categories of records which, "if copied or inspected, could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual." The General Assembly enacted this exemption in 2002 in response to the terrorist attacks of Sept. 11. See Del. Op. Att'y Gen., No. 05-ib19 (Aug. 1, 2005) (stating that the exemption covers law enforcement manuals such as check point guidelines and the Wilmington Police Department's Police Officer's Manual to the extent they contain information that would disclose investigative techniques and procedures or endanger the life and safety of citizens or law enforcement officers).

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B. Other statutory exclusions

1. Administrative Procedures Act. Certain agencies may be subject to the APA, which exempts internal procedure manuals, investigative files, and confidential and privileged material. 29 Del. C. § 10112(b)(4).

2. Antitrust — Investigative Demands. Any transcripts of oral testimony, documentary material or answers to written interrogatories provided pursuant to a demand by the Attorney General regarding knowledge concerning possible anti-trust violations shall be exempt from disclosure under the Act. 6 Del. C. § 2106(i).

3. Corporations — Transfer of Domicile. Documents submitted to the Secretary of State relating to the temporary transfer of corporate domicile to Delaware are exempted from disclosure, unless the corporation actually transfers its domicile to Delaware. 8 Del. C. § 389.

4. Collective Bargaining — Police and Firefighters, Public Employees, Public Schools. Negotiating sessions, including strategy meetings of public employers, mediation and the deliberative process of fact-finders are exempt from the Act. 19 Del. C. §§ 1313(b), 1613(b), 4013(b).

5. Engineers. The following items are specifically exempted from public disclosure under the Act:

(a) All applications to practice engineering in Delaware and associated documents except for the name and address of the applicant, the date of the application, the action of the Council on the application, and the status of the person's authorization to practice engineering in Delaware. 24 Del. C. § 2828(b)(1).

(b) Records and information received by the Council relating to charges against any person that could result in disciplinary action are not subject to the Act. However, if the information is disclosed at a public hearing or if the council issues an adverse order pursuant to the information, then the records are subject to public disclosure under the Act. 24 Del. C. § 2828(b)(2).

6. Child Placement Child Review Act. Meetings at which individual cases are discussed or records that pertain to individual cases and reviews are exempt from public disclosure. 31 Del. C. § 3816(a).

7. Hazardous Waste. The Secretary of the Department of Natural Resources may exempt certain information pertaining to hazardous waste obtained by the department if such information is proprietary or would divulge trade secrets. 7 Del. C. §§ 6304(c), 9116.

8. Health Data. Protected health information is not public information as defined at § 1002 of Title 29, and may not be disclosed without the informed consent of the individual. 16 Del. C. § 1232(a). Whenever protected health information is disclosed it shall be done in a nonidentifiable form, except when such disclosure is authorized by the individual. 16 Del. C. § 1232(a). Information collected by the State of Delaware in its health care database is exempted from the Act. Raw data is not available for public inspection and is not considered a public record under the Act. 16 Del. C. § 2006. Likewise, the results of mandatory human immunodeficiency virus tests conducted against sex offenders are not public records and are not subject to the Act. 10 Del. C. § 1077; 11 Del. C. § 3913.

9. Insurance — Reinsurance Intermediary Act. Reports prepared by the Insurance Commissioner regarding refusal to issue a reinsurance intermediary license are not subject to the Act. 18 Del. C. § 1603(e).

10. Lotteries. Information that is required to be reported, such as information pertaining to video lottery agents and financial information of licensees, is not subject to public disclosure under the Act. 29 Del. C. §§ 4805(a)(22), (23) & (b)(14), 4820(g).

11. Prison Records. Prison records are not subject to the Act. 11 Del. C. § 4322. Jenkins v. Gulledge, 1982 WL 593167 (Del. Super. Jan. 25, 1982), aff'd, 449 A.2d 207 (Del. 1982). See also 11 Del. C. § 4322(a).

12. Special Law Enforcement Assistance Fund. The purpose of this fund is to financially assist law enforcement operations targeted at organized crime and drug trafficking. The sources of the fund are derived from criminal forfeitures. The records, applications, authorizations and reports pertaining to this special fund are not subject to the Act. 11 Del. C. § 4113.

13. Sexual Offender — Registration. The documents required by the court pursuant to the sexual offender registration legislation are not subject to public disclosure except if requested by a prospective employer. 11 Del. C. § 4120(i).

14. Tax Returns. The state tax information required under Title 30 is not subject to disclosure under the Act. 30 Del. C. § 368. See also Del. Op. Att'y Gen., No. 95-ib13 (Mar. 20, 1995).

15. Victim's Bill of Rights. The address, place of employment and telephone number maintained by a court, prosecutor or law-enforcement agency of victims of certain crimes in Delaware are exempt from disclosure under the Act. 11 Del. C. § 9403(c).

16. Grand Jury Subpoenas. The Attorney General has opined that Rule 6(e) of the Federal Rules of Criminal Procedure specifically exempts the disclosure of grand jury subpoenas under Delaware's FOIA. Del. Op. Att'y Gen., No. 03-ib02 (Jan. 17, 2003).

17. Peer Review. In the medical profession, records of a review board have been said to be exempt. See 24 Del. C. § 1768.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

1. Executive privilege. The concept of executive privilege was recognized to exclude a request for the Judicial Nominating Commission records under 29 Del. C. § 10002(g)(6) in Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995).

2. Social Security Numbers. The Delaware Attorney General has determined that the Social Security numbers contained in sworn payroll information required by the state prevailing wage laws could not be disclosed under the Act. Del. Op. Att'y Gen., No. 95-ib03 (Jan. 25, 1995).

3. Administrative Burden. There is some indication that the courts might deny a person disclosure to otherwise nonexempt information if the scope of the request would unduly burden the public body or if the administrative costs were too high. See Del. Op. Att'y Gen., No. 95-ib13 (Mar. 20, 1995).

4. Other.  Autopsy reports are exempt from the Act as investigatory files. See Op. Att'y Gen. No. 05-ib16 (June 22, 2005); Lawson v. Meconi, 897 A.2d 740, 745 (Del. 2006) (holding that autopsy information gathered and disclosed to the police department during an investigation was confidential); 29 Del. C. § 4701. Death certificates are also similarly treated. 24 Del. C. § 3110.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports are exempt from the Act as investigatory files and are afforded protection under Delaware's Health Record Privacy Statute. 29 Del. C. §§ 10002(g)(3), 1000(2)(g)(1) and 16 Del. C. § 1230.

The common law right of privacy does not survive the death of the holder. Lawson v. Meconi, 2005 WL 1323123 (Del. Ch. May 27, 2005). Autopsy reports are occasionally treated as exempt under open records exemption four relating to investigations. Coroner reports will likely be treated similarly.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Not specified.

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C. Bank records

If they meet the definition of public records, bank records are not exempt. However, the Act permits redaction of bank account numbers and other sensitive information. Del. Op. Att'y Gen., No. 06-ib17 (Aug. 21, 2006).

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D. Budgets

If they meet the definition of public records, budgets are not exempt.

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E. Business records, financial data, trade secrets

Exempt if obtained from a person and are of a privileged or confidential nature under open records exemption two. 29 Del. C. § 10002(g)(2). For example, financial data supplied to the Division of Alcoholic Beverage Control by applicants for liquor licenses is exempt from disclosure, Del. Op. Att'y Gen., No. 87-I031 (Nov. 4, 1987), but disclosure of financial data may be required where a protest is filed. Pusey v. Delaware Alcoholic Beverage Control Comm'n, 596 A.2d 1367 (Del. 1991). Information turned over to the state by a company will not be protected as a trade secret when there is no apparent threat of competitive harm. Del. Op. Att’y Gen., No. 14-ib04 (July 18, 2014).

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F. Contracts, proposals and bids

Contracts, proposals and bids are not exempt. 29 Del. C. § 6907. See also Del. Op. Att'y Gen., No. 77-037 (Dec. 28, 1977); Del. Op. Att'y Gen., No. 05-ib13 (May 9, 2005).

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G. Collective bargaining records

Collective bargaining records are exempt. 29 Del. C. § 10002(g)(8).

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H. Economic development records

The Act does not require that a citizen be given the right to speak at the Economic Development Subcommittee open meeting so long as no content-based discrimination occurs. Del. Op. Att'y Gen., No. 06-ib19 (Sept. 5, 2006).

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I. Election Records

Not specified.

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J. Emergency Medical Services records

State law strictly limits release of health information. See Lawson v. Meconi, 897 A.2d 740 (Del. 2006).

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K. Gun permits

Records identifying individuals holding concealed weapons are exempt. 29 Del. C. § 10002(g)(1). However, firearms qualifications records are not exempt as personnel files. Del. Op. Att’y Gen., No. 17-ib19 (July 12, 2017).

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L. Homeland security and anti-terrorism measures

The disclosure of intelligence files that would endanger state, local and national welfare and security are exempted. 29 Del. C. § 10002(g)(5). Likewise, Delaware's FOIA has been amended to include an exemption for certain enumerated records that would jeopardize security. 29 Del. C. § 10002(g)(17).

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M. Hospital reports

Hospital records are exempt under open records exemption if the disclosure would constitute an invasion of privacy. 29 Del. C. § 10002(g)(1). Malpractice claim reports filed with the Insurance Commission pursuant to 18 Del. C. § 6820 are public records, although the name of the patient, portions of the patient's medical file and any description of the injury may be deleted. Del. Op. Att'y Gen., No. 88-I028 (Dec. 2, 1988).

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N. Personnel records

Under the Act, personnel files are excluded from the definition of public records. 29 Del. C. § 10002(g)(1).

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1. Salary

Though not specified in the statute, the attorney general has held that because no exemptions from disclosure apply to compensation records, they must be disclosed. Del. Op. Att’y Gen., No-12-iib10 (July 27, 2012).

Under the Act, payroll information is not a public record where such salaries are paid through non-public funds.  Del. Op. Att'y Gen., No. 07-ib12 (May 10, 2007).

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2. Disciplinary records

Disciplinary records contained within a Department of Correction employee's file fall within 11 Del. C. § 4322(a) and are exempt. Newsome v. Biden, 2011 WL 835135 (Del. Ch. Feb. 28, 2011).

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3. Applications

Employment applications are not public records as defined under the Act. 29 Del. C. § 10002(g)(6); Del. Op. Att'y Gen., No. 05-ib20 (July 27, 2005) (extending the right of privacy to "records relating to the job qualifications of applicants for public employment").

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4. Personally identifying information

The disclosure of personal identifiers like home address, telephone number, e-mail address, user ID number or password, etc. may be redacted from files before being made public. Del. Op. Att'y Gen., No. 06-ib17 (Aug. 21, 2006).

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5. Expense reports

Expense reports are not exempt as long as they meet the definition of a public record. 29 Del. C. § 10002(g); Del. Op. Att'y Gen., No. 06-ib17 (Aug. 21, 2006). Disclosure of a public employee's salary information does not constitute an invasion of privacy. Del. Op. Att'y Gen., No. 06-ib14 (July 12, 2006).

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

The exemptions related to criminal records and files are poorly worded and contradictory. Police agencies are willing to release general statistical information but are reluctant to release individual files, often relying on the investigatory records exception. See 29 Del. C. § 10002(g)(3).

The Attorney General has held that an agreement between the FBI and state police to keep cell site simulator information secret is a public record and must be disclosed. See Del. Op. Att’y Gen., No. 15-ib14 (Dec. 29, 2015).

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1. Accident reports

State law requires police to submit traffic reports to the Department of Public Safety of accidents involving an impaired driver, personal injury or deaths and apparent property damage of $1500.00. 21 Del. C. §4203(d). Those reports "shall not be open to public inspection." Id. at § 313(b).

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2. Police blotter

Not specified.

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3. 911 tapes

While the statute does not address these records, the attorney general found that audio recordings of 911 calls made from the residence of Vice President Biden were exempt from disclosure, as the privacy interests under the U.S. Constitution and Delaware law outweighed whatever interest the public might have in disclosure of the recordings. Del. Op. Att’y Gen., No. 13-ib06 (Nov. 20, 2013).

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4. Investigatory records

Not specified.

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5. Arrest records

Not specified.

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6. Compilations of criminal histories

Title 11 Chapter 85 restricts access to criminal histories.  News media may be given conviction data, but not all criminal history data. Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett, 2003 WL 1579170 (Del. Super. Jan. 17, 2003).

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7. Victims

Not specified.

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8. Confessions

Not specified.

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9. Confidential informants

Not specified.

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10. Police techniques

Not specified.

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11. Mugshots

Not specified.

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12. Sex offender records

Not specified.

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13. Emergency medical services records

Not specified.

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

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Q. Professional licensing records

Not exempt.

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R. Public utility records

Not exempt.

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S. Real estate appraisals, negotiations

Not specified.

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1. Appraisals

(This section is blank. See the point above.)

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2. Negotiations

(This section is blank. See the point above.)

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3. Transactions

(This section is blank. See the point above.)

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4. Deeds, liens, foreclosures, title history

(This section is blank. See the point above.)

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5. Zoning records

(This section is blank. See the point above.)

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T. School and university records

(This section is blank. See the subpoints below.)

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1. Athletic records

Not specified.

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2. Trustee records

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3. Student records

Not specified.

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

(This section is blank. See the point above.)

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U. State guard records

Not specified, but presumably open.

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V. Tax records

State tax information required under Title 30 is not subject to disclosure under the Act. 30 Del. C. § 368. See also Del. Op. Att'y Gen., No. 95-ib13 (Mar. 20, 1995).

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W. Vital Statistics

(This section is blank. See the subpoints below.)

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1. Birth certificates

Not specified.

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2. Marriage and divorce

Not specified.

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3. Death certificates

Death certificates are exempt. See 29 Del. C. § 1000(2)(g)(6) and 16 Del. C. § 3110(a) and (f).

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4. Infectious disease and health epidemics

Not specified.

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

This depends on the agency, but generally FOIA responsibilities are not assigned to specific offices. A "public body," however, must actually receive a FOIA request in order to trigger any legal obligation to make requested records available. Del. Op. Att'y Gen., No. 04-ib04 (Feb. 5, 2004).

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2. Does the law cover oral requests?

The Act does not specify the manner in which requests must be made. Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991) (the DFOIA does not address whether requests may be made in writing or orally).

If the requester can inspect and copy records, it is not required that he or she make arrangements beforehand. However, it is good practice to make a request in advance if the request involves a number of documents.

A requester should write a letter to memorialize the refusal of an oral request. Any subsequent steps taken by the requester need to be in writing.

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

(This section is blank. See the subpoints below.)

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1. Statutory, regulatory or court-set time limits for agency response

The Attorney General has suggested that responses should issue within 10 days after receiving a request, absent special circumstances requiring a longer delay. Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991). If the requested information is not exempt, agencies must give "reasonable" access to records during "regular business hours and [at the] place of business." 29 Del. C. §§ 10003(a), 10112(b)(3).

"Reasonable access" as used in Delaware's FOIA means that a public body "should, within ten (10) days after the receipt of a definitive request, issue a written determination to the requestor stating which of the requested records will, and which will not, be released and the reasons for any denial of a request." Del. Op. Att'y Gen., No. 91-I003 (Feb. 1, 1991). Weekends and legal holidays have been excluded from the 10-day calculation. Del. Op. Att'y Gen., No. 03-ib13 (June 2, 2003).

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2. Informal telephone inquiry as to status

Informal telephone inquiry as to status is acceptable.

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3. Is delay recognized as a denial for appeal purposes?

Any citizen denied access to public records as provided in this chapter may bring suit within 60 days of such denial. 29 Del. C. § 10005(b).

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4. Any other recourse to encourage a response

A citizen may petition the Attorney General to determine whether any violation of the Act has occurred or is about to occur. 29 Del. C. § 10005(e). The Attorney General has 20 days to make a written determination of whether a violation has occurred and to provide the custodian of records or the public body involved with a copy of the determination. If the Attorney General is obligated under state law to represent the agency, the Chief Deputy Attorney General must make a determination as to whether a violation occurred; if so, the Attorney General shall not represent the body in an appeal. For other agencies, if the Attorney General finds that a violation has occurred, the citizen may sue or request that the Attorney General file suit. If a request is made, the Attorney General shall notify the citizen within 15 days of the decision to file suit. The citizen has the absolute right to file suit regardless of the determination of the Attorney General and may move to intervene as a party in any suit filed by the Attorney General. 29 Del. C. § 10005(e).

As a general rule, "for fairness and practical reasons," the Attorney General has stated that it will not "investigate events that occurred more than six months before [it] received the [FOIA] complaint." Del. Op. Att'y Gen., No. 02-ib10 (Apr. 24, 2002); see also Del. Op. Att'y Gen., No. 00-ib05 (Feb. 18, 2000). Also, the Attorney General's office will not grant requests for reconsideration of an opinion unless presented with new facts or controlling legal authority. Del. Op. Att'y Gen., No. 03-ib26 (Nov. 13, 2003).

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C. Administrative appeal

Delaware does not have an administrative appeal procedure. See above for the procedure to request a decision from the attorney general.

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

(This section is blank. See the point above.)

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3. Fee issues

(This section is blank. See the point above.)

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4. Contents of appeal

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5. Waiting for a response

(This section is blank. See the point above.)

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6. Subsequent remedies

(This section is blank. See the point above.)

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Any citizen, 29 Del. C. § 10005(b), or the Attorney General, 29 Del. C. § 10005(e).

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2. Priority

A court does not give records questions priority on the docket, except when the parties can demonstrate urgency meriting expedited litigation.

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3. Pro se

Pro se litigation is possible but not advisable. It is recommended to petition the Attorney General, requesting that the Attorney General bring the action. 29 Del. C. § 10005(e).

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4. Issues the court will address

The burden of proof is on the custodian of records to justify the denial of access to records or any failure to comply with the act. 29 Del. C. § 10005(c).

A court will address the reason for denial, scope of request, applicable exemptions, fees for records and delays.

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a. Denial

A court will determine whether the reason for the denial is proper under Delaware's FOIA.

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b. Fees for records

Where the parties cannot agree on the reasonable expense of producing the information to the requesting party, Delaware courts have indicated their willingness to intervene. Bd. of Managers v. Gannett Co., 2005 WL 2660049 (Del. Super. Sept. 6, 2005).

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c. Delays

A court may award attorneys' fees and costs to a successful plaintiff. An improper delay in production of requested information may support such an award of attorneys' fees and costs.

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d. Patterns for future access (declaratory judgment)

A declaratory judgment action is a permissible means of bringing an alleged violation of the Act to the attention of the court in an attempt to gain future access to the information. Likewise, declaratory actions can be brought for a finding that no such violation occurred. See, e.g., Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 808 A.2d 453 (Del. Super. 2002) (where a declaratory action was brought by the State after a media company sought information).

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5. Pleading format

General rules of pleading are typically followed. Where a citizen's action, seeking a writ of mandamus to compel county officials to produce various documents that were requested in the context of another lawsuit relating to alleged campaign improprieties, was brought under Delaware's FOIA, the court found that as to certain requests, the record was unclear as to whether mandamus was the only available relief obtaining for those documents. Mell v. New Castle County, 835 A.2d 141 (Del. Super. 2003).

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6. Time limit for filing suit

Time limit for filing suit is within 60 days of a denial. 29 Del. C. § 10005(b). A court will dismiss an untimely action. Jenkins v. Gulledge, 1982 WL 593167 (Del. Super. Jan 25, 1982), aff'd, 449 A.2d 207 (Del. 1982). With that said, a timing deficiency is a procedural defect easily remedied with a new FOIA request. Id. The 60-day statute of limitations in Section 10005 has been held not to apply to the Attorney General because "[the] statute[ ] of limitations do not apply to a state when suing in its sovereign capacity." Mayor & Council of Wilmington v. Dukes, 157 A.2d 789, 794 (Del. 1960).

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7. What court?

A court of competent jurisdiction in the county or city in which the public body ordinarily meets or in which the plaintiff resides. 29 Del. C. § 10005(b). If access to records is sought, the action should be filed in Superior Court. If the plaintiff seeks to enjoin action or wants access to a meeting, the action should be brought in the Court of Chancery.

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

A court may award attorneys' fees to the successful plaintiff in an action brought under the Act. A court may award attorneys' fees and costs to a successful defendant, but only if it finds that the action was frivolous or was brought solely for the purpose of harassment. 29 Del. C. § 10005(d). See Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003) (awarding attorneys' fees and costs to requesting party).

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b. Court and litigation costs

Costs may be awarded. See Bd. of Managers of Delaware Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003) (awarding attorneys' fees and costs to requesting party).

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

An appeal can be made to the Delaware Supreme Court. There are no intermediate appellate courts.

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2. Time limits for filing appeals

A party has 30 days to file an appeal. Del. Supr. Ct. R. 6.

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3. Contact of interested amici

The Delaware Supreme Court has in the past permitted filing of a friend-of-the-court brief on similar issues. Del. Supr. Ct. R. 28.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

Any citizen of Delaware, subject to certain exceptions, may attend a "meeting." 29 Del. C. § 10001; see also Del. Op. Att'y Gen., No. 96-ib01 (Jan. 2, 1996). 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(b). See 29 Del. C. § 10002(c) (defining "public body"); 29 Del. C. § 10002(e) (defining "public business"). As a general matter, meetings must be held within the geographic jurisdiction of the public body. 29 Del. C. § 10004(g).

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B. What governments are subject to the law?

All levels of government, including state, county, local and municipal governments, are covered by the Act. 29 Del. C. § 10002(c).

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1. State

State governmental bodies are covered by the Act. See Del. Op. Att'y Gen., No. 99-ib16 (Dec. 17, 1999) (addressing alleged violations of the Delaware Department of Transportation).

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2. County

County governmental bodies are covered by the Act. See Del. Op. Att'y Gen., No. 02-ib22 (Sept. 13, 2002) (addressing alleged violations by the New Castle County Council).

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3. Local or municipal

Local and/or municipal governments are covered by the Act. See Del. Op. Att'y Gen., No. 05-ib29 (Oct. 13, 2005) (addressing alleged violations by the Town of Cheswold); Del. Op. Att'y Gen., No. 99-ib15 (Dec. 9, 1999) (addressing violations by the City of Newark).

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C. What bodies are covered by the law?

FOIA defines "public body" to include any "executive body" or "committee" of, or "advisory board" to, any executive 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); see also Del. Op. Att'y Gen., No. 02-ib19 (Aug. 19, 2002) (informal monthly meeting of one or two representatives from each of six school districts constitutes a "public body" for purposes of FOIA). The open meeting requirements of FOIA, however, do not apply to "[p]ublic bodies having only 1 member." 29 Del. C. § 10004(h)(6). See, e.g., Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001) (holding the open meeting laws do not apply to the County Administrator because he is a "body of one.") A "committee" may be a "public body" for purposes of FOIA if it is "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 . . . to advise or to make reports, investigations or recommendations." 29 Del. C. § 10002(c); Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001). When an executive body of one exercises his or her decision-making authority, the open meeting requirements of FOIA usually do not apply to fact-finding discussions with staff. Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001). Where, however, an executive official delegates any of his or her decision-making authority to a group of individuals, FOIA might apply because the group may amount to a "committee" appointed by an executive body. Id.

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1. Executive branch agencies

Though the Executive Branch is subject to the records portion of the Act, meetings of the Executive Branch are only open if they fall within the definition of a public body. The open meeting provision does not apply if the public body has only one member. 29 Del. C. § 10004(h)(6).

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a. What officials are covered?

FOIA does not usually apply to an executive body of one. Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001).

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b. Are certain executive functions covered?

When an executive official delegates any of his or her decision-making authority to a group of individuals, FOIA might apply because the group may amount to a "committee" appointed by an executive body. Del. Op. Att'y Gen., No. 01-ib15 (Oct. 23, 2001).

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c. Are only certain agencies subject to the act?

A body is covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. See 29 Del. C. § 10002(c).

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2. Legislative bodies

The General Assembly is not subject to the Act nor are any of the caucuses thereof, or any committee, subcommittee, ad-hoc committee, special committee or temporary committee thereof. 29 Del. C. § 10002(c); News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978). However, other legislative bodies are subject to the Act, including the Wilmington City Council. News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977).

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3. Courts

The courts and juries are not covered by the Act, but Delaware courts are required to be open by the Delaware Constitution. 29 Del. C. § 10004(h); Del. Const. of 1897, art. I, §  5. However, Family Court, Justice of the Peace Court and the Administrative Office of the Court are created by the legislature and may be subject to the Act.

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4. Nongovernmental bodies receiving public funds or benefits

Nongovernmental bodies that are supported in whole or in part by public funds, or expend or disburse public funds, including grants, gifts or similar disbursals, or are impliedly or specifically charged by any other public official body or agency to advise or to make reports, investigations or recommendations are covered by the Act. 29 Del. C. § 10002(c). But see Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. 1995).

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5. Nongovernmental groups whose members include governmental officials

Nongovernmental groups whose members include government officials are not covered by the Act simply because governmental officials are members. Nongovernmental groups may qualify if they meet the conditions set forth above. See Del. Op. Att'y Gen., No. 89-I010 (May 11, 1989) (advisory group chosen by governor to advise him on selection of prison site, consisting of members of governor's staff, city employee and county official, does not constitute a "public body" because no public funds were expended, notwithstanding the Governor, a public official charged the committee to advise him). See also Del. Op. Att'y Gen., No. 99-ib15 (Dec. 9, 1999) (group consisting of members of the City Planning Department, the City Parking Committee and private consultants does not constitute a "public body" under the Act). The University of Delaware and Delaware State University are not included except that the Boards of Trustees of the Universities shall each be a "public body," University and College documents relating to the expenditures of public funds shall be "public records," and each meeting of each full Board of Trustees shall be a "meeting." 29 Del. C. § 10002(d).

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6. Multi-state or regional bodies

These bodies are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984).

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7. Advisory boards and commissions, quasi-governmental entities

These bodies are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. See 29 Del. C. § 10002(c).

While the Delaware Supreme Court emphasized in Delaware Solid Waste Authority v. News-Journal Co. that the "open meeting laws are liberally construed," 480 A.2d 628, 637 (Del. 1984), the General Assembly has excepted the proceedings of several boards from the purview of the open meeting law, in statutes other than FOIA. See, e.g., 13 Del. C. § 2105 (Domestic Violence Coordinating Council); 24 Del. C. § 1191 (Board of Dental Examiners); 24 Del. C. § 1768 (Board of Medical Practice); 31 Del. C. § 3810(c) (meetings of the Foster Care Review Board "at which individual cases are discussed or reviewed shall not be subject to § 10004 of Title 29"). House Bill 205 further exempts deliberations in case decisions by the Industrial Accident Board, the Human Relations Commission and the Tax Appeals Board.

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8. Other bodies to which governmental or public functions are delegated

These bodies are covered if they (i) are supported in whole or in part by any public funds; (ii) expend or disburse any public funds, including grants, gifts or other similar disbursals and distributions; or (iii) are impliedly or specifically charged by any other public official, body or agency to advise or to make reports, investigations or recommendations. See 29 Del. C. § 10002(c). For example, a committee appointed by the General Assembly is now required to hold open meetings. 29 Del. C. § 10002(c). This corrects a defect in the Act that was addressed by the Delaware Supreme Court in Delaware Solid Waste Authority v. News-Journal Co., 480 A.2d 628 (Del. 1984). Agencies covered by the APA are required to hold public hearings. 29 Del. C. §§ 10117, 10124.

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9. Appointed as well as elected bodies

Both appointed and elected bodies are covered if established by the General Assembly. 29 Del. C. § 10002(c).

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D. What constitutes a meeting subject to the law

A "meeting" is defined as a formal or informal gathering of a quorum of the members of any public body for the purposes of discussing or taking action on public business. 29 Del. C. § 10002(b). The "public body" is a defined term. 29 Del. C. § 10002(c). The Act also defines "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. 01-ib13 (Aug. 9, 2001) (deciding a discussion of a waste transfer facility was a matter of "public business," subject to the open meeting laws); Del. Op. Att'y Gen., No. 02-ib07 (Mar. 22, 2002) (informal luncheon with members of Sussex County Council and private organization was a "meeting" subject to the FOIA laws and, as such, minutes should have been prepared). See also Del. Op. Att’y Gen., No. 18-ib23 (May 4, 2018) (council members’ “serial meetings” with a consultant were not a violation because they did not involve a quorum); Del. Op. Att’y Gen., No 18-ib07 (Feb. 9, 2018) (council press conference was not a meeting).

Meetings must be held in a room “reasonably” able to accommodate those who wish to attend. Del. Op. Att’y Gen., No. 14-ib03 (June 16, 2014).

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1. Number that must be present

(This section is blank. See the subpoints below.)

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a. Must a minimum number be present to constitute a "meeting"?

A quorum is the minimum number to be present to constitute a "meeting." The Act does not define what minimum number constitutes a "quorum." The number could be set by statute at a number greater than a majority. See Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984). A public body could be subject to the Act without a quorum if the body attempts to avoid the Act by meeting without a quorum. See Del. Op. Att'y Gen., No. 96-ib02 (Jan. 2, 1996). A gathering of members of a committee of a public body is a "public meeting" if a quorum of the committee is present. Del. Op. Att'y Gen., No. 02-ib33 (Dec. 23, 2002) ("If the public body has five members, and appoints a committee of three members, then a meeting of a quorum (two) members of the committee will be subject to FOIA.").

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b. What effect does absence of a quorum have?

Without a quorum, there is no meeting. 29 Del. C. § 10002(b).

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2. Nature of business subject to the law

(This section is blank. See the subpoints below.)

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a. "Information gathering" and "fact-finding" sessions

There is no exemption for "information gathering" and "fact-finding" sessions or for meetings related to deliberations towards a decision. In fact, strategy or work sessions may be open meetings if "public business" is discussed. News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977). "'Public business' means any matter over which the public body has supervision, control, jurisdiction or advisory power." 29 Del. C. § 10002(e). But see 29 Del. C. § 10004(b)(4) (exempting certain strategy sessions involving collective bargaining or potential litigation where the open meeting could adversely affect the position of the public body).

The Chancery Court, however, "has rejected the notion that the open meetings requirements of FOIA apply only 'to meetings where "formal action" [is] taken.'" Del. Op. Att'y Gen., 97-ib22 (Nov. 24, 1997) (citing News Journal Co. v. McLaughlin, 377 A.2d 358, 362 (Del. Ch. 1977)). Otherwise, "there would be no remedy to deter Board members from privately meeting for discussion, investigation or deliberation about public business as long as the Board reached no formal decision at that private meeting." Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *6 (Del. Ch. Oct. 1, 1990). Thus, the open meeting laws are said to cover "factfinding, deliberations and discussions, all of which surely influence the public entity's final decision." Del. Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000). FOIA "recognizes that policy decisions by public entities cannot realistically be understood as isolated instances of collective choice but are best understood as a decisional process based on inquiry, deliberation and consensus building." Id.

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b. Deliberation toward decisions

All meetings of a public body for the purpose of discussing or taking action on public business are open to the public unless subject to a specific exemption. 29 Del. C. § 10004(a). The deliberative process does not exist. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). FOIA does not allow "straw polling," nor does it allow public bodies to reach "consensus votes" that they strive later to ratify in a public meeting. Del. Op. Att'y Gen., No. 05-ib29 (Oct. 13, 2005).

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3. Electronic meetings

The Act does not specifically address electronic meetings. However, it appears that electronic meetings that qualify as public meetings under 29 Del. C. § 10002(b) are subject to the Act. Tyron v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990); see also Del. Op. Att'y Gen., No. 03-ib11 (May 19, 2003).

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a. Conference calls and video/Internet conferencing

Conference calls between a quorum of the members of any public body for the purposes of discussing or taking action on public business appear to constitute public meetings that are subject to the Act. Tyron v. Brandywine Sch. Dist. Bd. of Educ., 1990 WL 51719 (Del. Ch. Apr. 20, 1990) (finding that a telephone conversation was not a public meeting only because the conversation was between less than a quorum). A series of telephone calls made by a member of a public body to a number of other members of the same body, which number constitutes a quorum of the public body, is a meeting subject to the open meetings laws. Del. Op. Att'y Gen., No. 04-ib17 (Oct. 18, 2004).

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b. E-mail

An exchange of e-mail between members of a public body discussing public business constitutes a meeting subject to the FOIA laws. Del. Op. Att'y Gen., No. 03-ib11 (May 19, 2003).

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c. Text messages

Although the Act does not specifically address text messages, such messages have been requested under the Act. Del. Op. Att'y Gen., No. 09-ib04 (June 4, 2009).

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d. Instant messaging

Not addressed by the Act.

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e. Social media and online discussion boards

Not addressed by the Act.

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E. Categories of meetings subject to the law

(This section is blank. See the subpoints below.)

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1. Regular meetings

(This section is blank. See the subpoints below.)

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a. Definition

A "regularly scheduled meeting" shall mean any meeting of a public body held on a periodic basis. 29 Del. C. § 10004(g)(2).

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b. Notice

Notice of a meeting must be given at least seven days in advance. 29 Del. C. § 10004(e)(2); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (six days' advance notice was insufficient). See Del. Op. Att'y Gen., No. 01-ib10 (June 12, 2001) (holding that although violations occurred, remediation was not required because interested citizens were well represented by their elected representatives from city, state and federal government).

Notice must be given to the public. 29 Del. C. § 10004(e)(2), (3). Thus, notice in the form of a memorandum given to members of a committee but not the public at large has been held insufficient. Del. Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000).

Notice must be conspicuous. A conspicuous posting can be at the principal office of the public body holding the meeting or, if no such office exists, at the place where meetings of the public body are regularly held. A reasonable number of copies of such notice must be made available. 29 Del. C. § 10004(e)(4); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (posting of a single notice insufficient; other copies must be made available).

An agenda is required; however, FOIA contemplates that it is subject to change to include additional items such as executive session or the deletion of items. 29 Del. C. § 10004(e)(2); but see Del. Op. Att'y Gen., No. 99-ib11 (June 25, 1999) (agenda change should have been noticed because City Council knew of need to address issue at least 12 days in advance of meeting). An agenda should be worded in plain and comprehensive language and must directly state the purpose of the meeting. Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). If the agenda is available at the time of the initial posting, it should be added to the notice at least six hours in advance of the meeting, and the reasons for the delay in posting should briefly set forth in the agenda. 29 Del. C. § 10004(e)(5). A general description in the agenda should be sufficient to draw attention to the significance of the subject to be discussed. Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986); Del. Op. Att'y Gen., No. 05-ib30 (Oct. 24, 2005).

FOIA permits changes in the agenda "to include additional items . . . which arise at the time of the public body's meeting." 29 Del. C. § 10004(e)(2). "If a public body knows that an item of public interest will be addressed at a meeting, then it cannot claim, in good faith, that the issue arose at the time of the public body's meeting in order to circumvent the notice requirement of FOIA." Del. Op. Att'y Gen., No. 97-ib20 (Oct. 20, 1997); Del Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000).

A notice must include the times, dates and places of such meetings. See 29 Del. C. § 10004(e)(2); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986).

Any action taken at the meeting not adequately notified is voidable. 29 Del. C. § 10005(a); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (Court of Chancery reluctant to enter injunction where important public interests involved).

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c. Minutes

Minutes should contain the following information: a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f). Minutes of a meeting of a public body should be prepared by the time of the public body's next regularly scheduled meeting. Del. Op. Att'y Gen., No. 03-ib05 (Feb. 5, 2003).

Minutes are public records and they must be available for public inspection and copying as a public record. 29 Del. C. § 10004(f). See also 29 Del. C. § 10002(g)(10).

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2. Special or emergency meetings

(This section is blank. See the subpoints below.)

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a. Definition

An emergency meeting is defined as one that is necessary for the immediate preservation of the public peace, health or safety. 29 Del. C. § 10004(e)(1). A special or rescheduled meeting is defined as a meeting held less than seven days after the scheduling decision is made. 29 Del. C. § 10004(e)(3).

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b. Notice requirements

There need only be 24 hours' notice for a "special meeting." Del. Op. Att'y Gen., No. 01-ib02 (Jan. 30, 2001). The public notice of a special meeting "shall include an explanation as to why [seven days' notice] could not be given." 29 Del. C. § 10004(e)(3). For example, the Attorney General has determined that notice of a special meeting posted 24 hours before the meeting failed to explain why normal seven-day notice could not be given. Del. Op. Att'y Gen., No. 94-I037 (July 26, 1994). FOIA, however, "requires only a reason, not a specific detailed factual basis why the seven day requirement could not be met." Del. Op. Att'y Gen., No. 96-ib15 (May 10, 1996) (finding that the notice lacked "any explanation" why the seven-day requirement was not met). See Del. Op. Att'y Gen., No. 01-ib02 (Jan. 30, 2001) (holding the town violated the open meeting requirements of FOIA by not including an explanation of why it could not give seven days' notice); see also Del. Op. Att'y Gen., No. 05-ib21 (Aug. 1, 2005) (school district violated FOIA by not including reason in notice as to why seven days' notice of meeting could not be given).

Notice for special meetings should be given as soon as reasonably possible, but in any event no later than 24 hours before such meeting. 29 Del. C. § 10004(e)(3). No notice is required for emergency meetings that are necessary for the immediate preservation of the public peace, health or safety. 29 Del. C. § 10004(e)(1).

Notice should be given to the public and should be conspicuous. A conspicuous posting should be made at the principal office of the public body holding the meeting or, if no such office exists, at the place where meetings of the public body are regularly held. Also, a reasonable number of copies of such notice shall be made available. 29 Del. C. § 10004(e)(4); Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (posting of a single notice insufficient; other copies must be made available).

An agenda is required; however, it is subject to change to include additional items such as executive session or the deletion of items. 29 Del. C. § 10004(e)(2). If the agenda is available at the time of the initial posting, it should be added to the notice at least six hours in advance of the meeting, and the reasons for the delay in posting should briefly set forth in the agenda. 29 Del. C. § 10004(e)(5). A general description in the agenda should be sufficient to draw attention to the significance of the subject to be discussed. Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986).

Times, dates and places of such meetings are required in a notice. See 29 Del. C. § 10004(e)(2). The public notice of special or rescheduled meetings shall include an explanation as to why the seven days' required notice could not be given. 29 Del. C. § 10004(e)(3).

The penalty for failure to give adequate notice may be that the actions taken at the meeting are voidable. 29 Del. C. § 10005(a).

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c. Minutes

Minutes should contain the following information: a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f). Minutes of a meeting of a public body should be prepared by the time of the public body's next regularly scheduled meeting. Del. Op. Att'y Gen., No. 03-ib05 (Feb. 5, 2003). Minutes of executive sessions in emergency meetings should also be kept. Del. Op. Att’y Gen., No. 17-ib27 (July 18, 2017).

The minutes are available for public inspection and copying as a public record. 29 Del. C. § 10004(f). See also 29 Del. C. § 10002(g)(10).

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3. Closed meetings or executive sessions

(This section is blank. See the subpoints below.)

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a. Definition

An executive session is defined as a public meeting that is closed to the public. Executive sessions may be held only for the discussion of public business. 29 Del. C. § 10004(c). See Del. Op. Att'y Gen., No. 01-ib03 (Feb. 16, 2001) (concluding FOIA permits a public body to go into executive session to discuss labor negotiations or collective bargaining because the discussion of those issues may disclose the contents of documents exempted from disclosure under FOIA). It is the public body's burden to justify a decision to meet in executive session. 29 Del. C. § 10005(c). FOIA does not permit a "stand alone" executive session. Del. Op. Att'y Gen., No. 02-ib33 (Dec. 23, 2002).

The agenda must include but is not limited to a statement of intent to hold an executive session and the specific grounds for the executive session under the Act. 29 Del. C. § 10004(e)(2).

Location. Regularly scheduled meetings of a public body are required to be held within the geographic jurisdiction of that body. Thus a city, town or school district must hold its meetings within its district or the county in which its principal office is located. The geographic limitation on location of meetings is not applicable to emergency meetings necessary for the immediate preservation of public peace, health or safety or for the immediate preservation of public financial welfare. 29 Del. C. § 10004(g).

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b. Notice requirements

Notice at least seven days in advance for an executive session called during a regular meeting and at least 24 hours in advance for an executive session called during a special meeting. 29 Del. C. § 10004(e)(3). A public body meeting only to discuss matters authorized for executive session must still notice the meeting to the public so that the public has the opportunity to attend the opening of the meeting, to see that the public body follows the required procedures for going into executive session, and to observe any discussion of any public business that follows. Del. Op. Att'y Gen., No. 02-ib17 (Aug. 6, 2002).

Notice must be given to the public, and should be posted at the principal office of the public body holding the meeting or, if no such office exists, at the place where meetings of the public body are regularly held. 29 Del. C. § 10004(e)(4).

The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in Section 10004(b) of the Act. 29 Del. C. § 10004(c). See Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Del. Op. Att'y Gen., No. 01-ib03 (Feb. 16, 2001) (the reasons for an executive session must be clearly delineated in the agenda); Del. Op. Att'y Gen., No. 03-ib20 (Sept. 3, 2003) (agenda listed a topic authorized by section 10004(b)(9) as one suitable for executive session, but since town council discussed item that would have been suitable for executive session under a different section of 10004(b)(1), a technical FOIA violation had occurred).

Times, dates and places of such meetings are required in the notice. See 29 Del. C. § 10004(e)(2).

Failure to give adequate notice could result in the action taken at the meeting being voidable. 29 Del. C. § 10005(a); see also Del. Op. Att'y Gen., No. 02-ib33 (Dec. 23, 2002).

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c. Minutes

A record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens vote), of each vote taken and the action agreed upon. 29 Del. C. § 10004(f).

Minutes are a public record. However, minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session. 29 Del. C. § 10004(f). The burden of proving that public disclosure of the minutes would defeat the lawful purpose of the executive session is on the public body wishing to prevent disclosure. See Del. Op. Att'y Gen., No. 05-ib26 (Aug. 29, 2005).  A practical reason for a public body to keep "meaningful minutes" (a contemporaneous record of subjects discussed in executive session) is to avoid failing to meet its burden of proving that the action was justified. The Act neither requires that subjects discussed in executive session must be summarized nor attempts to define how specific such a summary should be. See Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995).

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d. Requirement to meet in public before closing meeting

In order to go into executive session there must be an affirmative vote of a majority of members present at a meeting of the public body. 29 Del. C. § 10004(c). The vote on the question of holding an executive session shall take place at a meeting of the public body that shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. Id.

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e. Requirement to state statutory authority for closing meetings before closure

Although there is no requirement to give a statutory authority before executive sessions are held, "[t]he purpose of such executive sessions shall be set forth in the agenda and shall be limited to" meeting exemptions in the Act. 29 Del. C. § 10004(c).

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f. Tape recording requirements

While there are no tape recording requirements, tape recordings of meetings are public records and, like written minutes, are subject to public disclosure unless exempt. See Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994). See also Del. Op. Att'y Gen., No. 00-ib19 (Nov. 8, 2000) (requiring that audio tapes be made available to the requesting party).

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F. Recording/broadcast of meetings

There is no provision as to whether making sound or photographic recordings is allowed at meetings.

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1. Sound recordings allowed

Not addressed.

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2. Photographic recordings allowed

Not addressed.

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G. Access to meeting materials, reports and agendas

Agendas must be public, but the statute does not address other reports and materials.

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H. Are there sanctions for noncompliance?

The only "sanctions" permitted under the Delaware Act is the award of Attorney fees and costs to a successful plaintiff.

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Act contains nine discretionary exemptions for closing executive sessions to the public. See 29 Del. C. § 10004(b). The Act contains nine discretionary and eleven mandatory exemptions to the opening meeting statute. 29 Del. C. § 10004(h).

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2. Description of each exemption

a. Nine discretionary exemptions:

1. 29 Del. C. § 10004(b)(1): "Discussion of an individual citizen's qualification to hold a job or pursue training unless the citizen requests that such a meeting be open." This exception is limited to discussions of whether to hire a new employee such as a town manager or police chief. Del. Op. Att'y Gen., No. 01-ib01 (Jan. 16, 2001).

2. 29 Del. C. § 10004(b)(2): "Preliminary discussions on site acquisitions for any publicly funded capital improvements."

3. 29 Del. C. § 10004(b)(3): "Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension."

4. 29 Del. C. § 10004(b)(4): "Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body." See Oberly v. Red Clay Consol. Sch. Dist., 1985 Del. Ch. LEXIS 399 (Del. Ch. Mar. 6, 1985) (cannot use meeting with attorney as device to avoid public discussion of merits of plan); Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (cannot use to discuss views on regulations and to draft new regulations); Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); Beebe Med. Ctr. v. Certificate of Need Appeals Bd., 1995 WL 465318 (Del. Super. June 30, 1995), aff'd, 676 A.2d 900 (Del. 1996). This exemption applies to a "question and answer" session/meeting between a county attorney and members of a public body who have been named in their individual capacity as defendants in a lawsuit. Del. Op. Att'y Gen., No. 05-ib28 (Sept. 7, 2005). Potential litigation under this exemption applies only when there is a realistic or tangible threat based on objective factors, such as a written demand letter, notice of intent to sue, etc. Del. Op. Att'y Gen., No. 05-ib24 (Aug. 18, 2005).

5. 29 Del. C. § 10004(b)(5): "Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor."

6. 29 Del. C. § 10004(b)(6): "Discussion of the content of documents, excluded from the definition of 'public record' . . . where such discussion may disclose the contents of such documents." See Del. Op. Att'y Gen., No. 96-ib30 (Sept. 25, 1996) (determining that it was proper for the school board to meet in executive session to consider scholarship applications, since the board had to review academic transcripts and parents' tax returns, which documents were exempt from disclosure under FOIA).

7. 29 Del. C. § 10004(b)(7): "The hearing of student disciplinary cases unless the student requests a public hearing."

8. 29 Del. C. § 10004(b)(8): "The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing."

9. 29 Del. C. § 10004(b)(9): "Personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open." See, e.g., Del. Op. Att'y Gen., 99-ib05 (May 12, 1999); Del. Op. Att'y Gen., 99-ib03 (Apr. 28, 1999); but see Del. Op. Att'y Gen., No. 02-ib17 (Aug. 6, 2002) ("personnel matters" does not include discussions relating to the mechanics of the selection process and criteria for a new school board superintendent). This exemption does not apply to independent contractors hired by a public entity. Del. Op. Att'y Gen., No. 05-ib02 (Jan. 12, 2005); Del. Op. Att'y Gen., No. 05-ib14 (June 8, 2005).

b. Eleven mandatory exemptions:

1. 29 Del. C. § 10004(h)(1): Grand juries.

2. 29 Del. C. § 10004(h)(2): Petit juries.

3. 29 Del. C. § 10004(h)(3): Special juries.

4. 29 Del. C. § 10004(h)(4): The deliberations of any court.

5. 29 Del. C. § 10004(h)(5): The Board of Pardons and Parole.

6. 29 Del. C. § 10004(h)(6): Public Bodies having only one member.

7. 29 Del. C. § 10004(h)(8): In certain circumstances the Violent Crimes Compensation Board may close a meeting.

8. 29 Del. C. § 10004(h)(9): Deliberations of the State Human Relations Commissions Industrial Accident Board and the Tax Appeals Board for cases governed by the APA.

9. 29 Del. C. § 10004(e)(1): Emergency sessions.

10. 29 Del. C. § 10002(c): The General Assembly.

11. 29 Del. C. § 10002(d): Certain meetings of The University of Delaware and Delaware State University.

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B. Any other statutory requirements for closed or open meetings

Persons may be removed from a meeting who are willfully or seriously disruptive of the conduct of the meeting. 29 Del. C. § 10004(d).

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C. Court mandated opening, closing

Courts may not create exemptions to open meetings that are not found in the Act.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Deliberations are not necessarily closed, nor are fact-finding conferences.

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1. Deliberations closed, but not fact-finding

The open meeting laws cover "factfinding, deliberations and discussions." Del. Op. Att'y Gen., No. 00-ib07 (Apr. 28, 2000). So long as "public business" is discussed, a session is open unless it falls within an exception.

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2. Only certain adjudications closed, i.e. under certain statutes

The open meeting laws are clear that only certain meetings can be closed to the public. Such closed meetings are governed by statutes.

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B. Budget sessions

Budget sessions are open.

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C. Business and industry relations

Meetings regarding or discussing business and industry relations are open.

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D. Federal programs

Federal program meetings are open.

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E. Financial data of public bodies

Meetings addressing the financial information of public bodies are open.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Meetings regarding or discussing trade secrets or proprietary data may be closed. See 29 Del. C. § 10004(b)(6). See also 29 Del. C. § 10002(g)(2) (exempting documents relating to trade secrets or privileged or confidential financial information).

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G. Gifts, trusts and honorary degrees

Meetings regarding charitable contributions and the like may not be open. See 29 Del. C. § 10004(b)(5).

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H. Grand jury testimony by public employees

Meetings involving grand jury testimony of public employees are closed. See 29 Del. C. § 10004(h)(1).

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I. Licensing examinations

Licensing examinations may be closed under the open meeting exemption allowing for employees to close such meetings. See 29 Del. C. § 10004(b)(9). However, hearings on licenses may be open under the APA. See 29 Del. C. § 10131.

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J. Litigation, pending litigation or other attorney-client privileges

Meetings involving pending litigation or other attorney-client privileges are generally closed. 29 Del. C. §§ 10004(b)(4), 10004(b)(6) and 10002(g)(9).

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K. Negotiations and collective bargaining of public employees

Any sessions regarding collective bargaining are closed only if an open meeting would have an adverse effect on the bargaining position of the public body. 29 Del. C. § 10004(b)(4).

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1. Any sessions regarding collective bargaining

(This section is blank. See the point above.)

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2. Only those between the public employees and the public body

(This section is blank. See the point above.)

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L. Parole board meetings, or meetings involving parole board decisions

Parole board meetings are closed. 29 Del. C. § 10004(h)(5).

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M. Patients, discussions on individual patients

Patient meetings are probably closed to preserve privacy of the patient.

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N. Personnel matters

(This section is blank. See the subpoints below.)

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1. Interviews for public employment

Meetings regarding interviews for public employment are closed. 29 Del. C. § 10004(b)(1), (9).

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2. Disciplinary matters, performance or ethics of public employees

Disciplinary meetings are closed unless the public employee requests an open meeting. 29 Del. C. § 10004(b)(8), (9).

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3. Dismissal, considering dismissal of public employees

Meetings regarding dismissal of a public employee are closed unless the employee requests the meeting to be open. 29 Del. C. § 10004(b)(8), (9).

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O. Real estate negotiations

Meetings involving real estate negotiations are closed. 29 Del. C. § 10004(b)(2).

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P. Security, national and/or state, of buildings, personnel or other

Such meetings might be closed depending on the subject of the meeting.

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Q. Students, discussions on individual students

Discussions of individual students are closed, unless the student requests that the meeting be open. 29 Del. C. § 10004(b)(7), (9).

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IV. Procedure for asserting right of access

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A. When to challenge

FOIA provides that a citizen complaining of a violation of the open meeting law has a right to challenge the validity "of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action." 29 Del. C. § 10005(a). The Attorney General has declined to pursue any FOIA complaint where the act complained of took place more than six months prior to the date of the complaint. Del. Op. Att'y Gen., No. 00-ib05 (Feb. 18, 2000) (stating that since the meeting that is the subject of your complaint occurred more than six months ago, the Attorney General could not take any further action with regard to your complaint.) See also Del. Op. Att'y Gen., No. 01-ib10 (June 12, 2001) (requiring a council "to begin the decision-making process anew" in order to remedy violations of the open meetings laws).

The Act, however, does not provide an expedited procedure for reviewing requests to attend upcoming meetings, for ruling on being barred from a meeting, for ruling on whether to set aside decisions made at improperly closed meetings, or for ruling on future meetings. Those illegally barred from a meeting should attempt to persuade the agency to open the meeting; if this fails, negotiation with the public body's attorney or litigation should be considered.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

(This section is blank. See the point above.)

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2. When barred from attending

(This section is blank. See the point above.)

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3. To set aside decision

(This section is blank. See the point above.)

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4. For ruling on future meetings

(This section is blank. See the point above.)

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5. Other

(This section is blank. See the point above.)

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B. How to start

(This section is blank. See the subpoints below.)

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1. Where to ask for ruling

(This section is blank. See the subpoints below.)

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a. Administrative forum

Request for ruling should be made at the agency level, although this is not a required step. There is no independent agency that adjudicates open meetings issues in Delaware.

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b. State attorney general

Any citizen may petition the Attorney General to determine whether a violation of the Act has occurred or is about to occur. 29 Del. C. § 10005(e). Within 20 days of receiving the petition, the Attorney General shall make a written determination of whether a violation has occurred or is about to occur and send a copy of the determination to the public body involved. Id. If the Attorney General finds that a violation has occurred, the citizen may either sue or request that the Attorney General file suit. Id. The citizen has the absolute right to sue regardless of the determination of the Attorney General and may move to intervene as party in any suit filed by the Attorney General. Id.

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c. Court

The meetings portion of the Act contemplates an action in the Court of Chancery. 29 Del. C. § 10005(a). However, in the interest of judicial economy, the Superior Court may entertain certain actions under the Act as well. See Beebe Medical Ctr. v. Certificate of Need Appeals Bd., 1995 WL 465318 (Del. Super. June 30, 1995), aff'd, 676 A.2d 900 (Del. 1996) (TABLE).

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2. Applicable time limits

Any citizen may challenge a public action under the Act by filing suit within 60 days of learning of the action, but no later than six months after the action. 29 Del. C. § 10005(a).

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3. Contents of request for ruling

The Act does not prescribe a specific form.

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4. How long should you wait for a response

Practice suggests waiting 10 days.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

(This section is blank. See the subpoints below.)

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1. Who may sue?

Any Delaware citizen or the Delaware Attorney General may initiate an action regarding an open meeting violation. 29 Del. C. § 10005(e).

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2. Will the court give priority to the pleading?

Priority is only given to a pleading/action if it seeks injunctive relief.

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3. Pro se possibility, advisability

It is inadvisable to proceed pro se due to the subtleties of the Act and procedural requirements of litigation. Petition the Attorney General pursuant to 29 Del. C. § 10005(e).

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4. What issues will the court address?

A court will address whether the meeting was subject to the Act, whether the meeting was properly closed, whether a proper exemption was asserted, whether to order future meetings opened, and the nature of the proper remedy.

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a. Open the meeting

A court will decide whether the meeting was subject to the open meeting provisions of the Act, which kind of meeting it was, and whether it should have been open (or closed) to the public. A court can also determine whether the meeting was properly noticed and that the meeting was conducted within the scope of the agenda.

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b. Invalidate the decision

A court may find that a violation of the Act occurred.

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c. Order future meetings open

If a court finds that a violation occurred, it can order future meetings to be open and void the meeting that is in violation of the Act. 29 Del. C. § 10005(a).

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5. Pleading format

The Federal Rules are generally followed by the Chancery Court.

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6. Time limit for filing suit

Within 60 days of learning of the action but not later than six months after the action occurred. 29 Del. C. § 10005(a).

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7. What court?

Actions should be brought in the Delaware Court of Chancery. 29 Del. C. § 10005(a).

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8. Judicial remedies available

Action taken at a meeting in violation of the Act may be voidable. 29 Del. C. § 10005(a). Remedies permitted by this section include injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief. 29 Del. C. § 10005(d); see also Wilmington Fed'n of Teachers v. Howell, 374 A.2d 832 (Del. 1977) (invalidation of public body's decision constitutes an extreme sanction and in the absence of an unequivocal statutory mandate declaring action taken in derogation thereof to be null and void action so taken not to be summarily invalidated by a court); Retail Liquor Dealers Ass'n v. Del. Alcoholic Beverage Control Comm'n, 1980 WL 273545 (Del. Ch. Apr. 23, 1980). The 1985 Amendments to the Act appears to address the concern that invalidation is an extreme remedy. See Ianni v. Dep't of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (court expressed concern about using injunction to revise action of Board of Election). See Del. Op. Att'y Gen., No. 96-ib18 (May 29, 1996) (finding that a public body meeting was held in violation of the Act but providing for no remedy other than the opinion itself). But see Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994).

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9. Availability of court costs and attorney's fees

A court may award attorneys' fees and costs to the successful plaintiff of any action brought under this Act. 29 Del. C. § 10005(d). A court may also award attorneys' fees and costs to a successful defendant, but only if it finds that the action was frivolous or was brought solely for the purpose of harassment. Id.

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10. Fines

None.

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11. Other penalties

None.

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D. Appealing initial court decisions

(This section is blank. See the subpoints below.)

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1. Appeal routes

An appeal can be made to the Delaware Supreme Court. There are no intermediate appellate courts.

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2. Time limits for filing appeals

Pursuant to Delaware Supreme Court Rule 6, a party has 30 days to appeal.

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3. Contact of interested amici

The Delaware Supreme Court has in the past permitted filing of a friend-of-the court brief on similar issues. Del. Supr. Ct. R. 28.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

"Open to the public" means that members of the public attending the meeting should have an opportunity to participate actively, subject to reasonable time and other controls. The Attorney General has encouraged a public body to fulfill its statutory objection to have an open public meeting by answering questions by the citizens at public meetings. "[A public body] should make diligent efforts to answer valid, bona fide, good faith questions by its citizens. Otherwise, the statutory mandate contained in 29 Del. C. § 10001, § 10004(a) is not being met by the [public body]." Del. Op. Att'y Gen., No. 94-I023 (June 21, 1994). A public body, however, can restrict the opportunity for public comments to a designated time on the agenda.

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B. Must a commenter give notice of intentions to comment?

Not addressed.

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C. Can a public body limit comment?

Yes, so long as such restrictions are not content based.

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D. How can a participant assert rights to comment?

Not specifically addressed, but presumably through active participation in open meetings.

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E. Are there sanctions for unapproved comment?

Not addressed.

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Appendix

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