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Delaware

Open Government Guide

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Author

Last updated August 23, 2021

Lauren P. Russell
BALLARD SPAHR LLP
1909 K Street, NW, 12th Floor
Washington, DC 20006-1157
202.661.7605

Previously updated by RCFP staff based on an earlier edition by Chad M. Shandler and Laura D. Hatcher at Richards, Layton & Finger, Wilmington, Delaware.

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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.

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

The General Assembly appears receptive to curing defects in the Act as they are discovered, primarily as a result of judicial decisions. 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).

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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., No. 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., No. 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., No. 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.”).

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).

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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. Jud. Nominating Comm’n, 659 A.2d 777 (Del. Super. 1995); 29 Del. C. § 10002(k) (defining “public body”). The records of all functions of the executive branch are subject to the Act. See 29 Del. C. § 10002(m) (defining “public business”).

Specific agencies are also subject to disclosure requirements under the APA. Id. § 10112. The Delaware Code defines which agencies are subject to the APA. Id. § 10161.

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2. Legislative bodies

Legislative bodies are covered by the Act. For example, the Wilmington City Council is considered a public body subject to disclosure and open meeting requirements. News-Journal Co. v. McLaughlin, 377 A.2d 358 (Del. Ch. 1977). Additionally, so is any entity or body established by an act of the General Assembly that receives public funds, expends public funds or otherwise makes reports to a public body or official. 29 Del. C. § 10002(k).

However, caucuses of the General Assembly are specifically exempted. Id.News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978) (separation of powers doctrine prevented court from enforcing the Act against the House of Representatives, which held a closed quorum meeting in violation of the plain language of the Act). The Act also specifically exempts emails sent or received by General Assembly members and their staff, communications between General Assembly members and their constituents, and communications between General Assembly members. 29 Del. C. § 10002(o)(16), (19).

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3. Courts

The Attorney General has opined that courts are not covered by the Act based on the “public body” definition of the Act, and because they do not perform executive or legislative functions. See Del. Op. Att’y Gen., No. 07-IB02 (Feb. 7, 2007).

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.

Each court has a separate but similar policy regarding public access to court records and the process for requesting records, which are accessible on the Delaware Courts website.

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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(k). The University of Delaware and Delaware State University are not included, except that their respective Boards of Trustees are considered to be “public bodies.” Id. § 10002(l). University documents relating to the expenditures of public funds are “public records,” and each meeting of the full Boards of Trustees of the University of Delaware and Delaware State University is 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

Multi-state 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(k).

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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(k); see Delaware Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984) (waste authority that was established “to develop and implement a statewide solid waste management plan” and partially publicly funded was a public body subject to FOIA).

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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(k).

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(o). “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.” Id. “Public business” means any matter over which the public body has supervision, control, jurisdiction or advisory power. Id. § 10002(m).

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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 also 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 FOIA 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(o). 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?

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

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

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d. Online dissemination

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6. Email

Emails fitting the definition of a public record are generally subject to FOIA disclosure requirements, but emails received or sent by members of the Delaware General Assembly or their staff are exempt. 29 Del. C. § 10002(o)(16).

A public body is to fulfill a request for email from its own records, if doing so can be accomplished by the public body with reasonable effort, and it must “request that its information and technology personnel or custodians provide the e-mail records to the public body.” Id. § 10003(i)(a). The public body must provide an itemized written estimate to the requester before requesting IT personnel to provide the email records and let the requester decide whether to proceed with fulfillment of the request. Id. § 10003(i)(b).

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7. Text messages and other electronic messages

Text messages and other electronic messages are public records if they fit the definition of a public record under the Act. See 29 Del. C. § 10002(o).

A public body is required to promptly request records controlled by the public body and not in its possession, but the public body must provide an itemized written cost estimate of the retrieval costs to the requester and give the requester opportunity to decide whether to proceed. Id. § 10003(j).

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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(o)(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 a fee schedule for FOIA requests that is applicable “[u]nless otherwise set forth in the Delaware Code or any applicable code of a county or municipal public body.” 29 Del. C. § 10003(m). The Act provides a fee schedule for photocopying, administrative and microfilm and/or microfiche printouts. Id.

Agencies may charge administrative fees for requests that require more than one hour of staff time to process, and those fees may be for “identifying records; monitoring file reviews; and generating computer records (electronic or print-outs). Administrative fees shall not include any cost associated with the public body’s legal review of whether any portion of the requested records is exempt from FOIA.” Id. Agencies are to ensure the administrative fees are “minimized” and “reasonable.” Id.

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2. Particular fee specifications or provisions

Public bodies may charge administrative fees for staff time exceeding one hour, which may include “identifying records; monitoring file reviews; and generating computer records,” but it cannot charge for “legal review of whether any portion of the requested records is exempt from FOIA.” 29 Del. C. § 10003(m)(2). A public body may require all or a portion of the fee be paid before fulfilling the request. Id. § 10003(m)(5).

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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); see also 29 Del. C. § 10003(m)(2) (state agency may include fee waiver provisions in its policies so long as the waiver is applied equally to a class of persons, such as nonprofit organizations).

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4. Requirements or prohibitions regarding advance payment

A public body may require all or a portion of the fee be paid before fulfilling the request. Id. § 10003(m)(5).

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5. Have agencies imposed prohibitive fees to discourage requesters?

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6. Fees for electronic records

Charges for copying electronic records are to be calculated by the material costs involved in generating the copies, such as CDs or DVDs, and administrative costs. 29 Del. C. § 10003(m)(4).

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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?

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G. Record-holder obligations

Each public body must designate a FOIA coordinator to serve as the point of contact for requests and coordinate agency responses to requests. 29 Del. C. § 10003(g).

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1. Search obligations

Each public body must “provide reasonable assistance to the public in identifying and locating public records to which they are entitled access.” 29 Del. C. § 10003(d). The public body must make a “reasonable effort” in searching for requested records. Id. § 10003(f)(2), (i).

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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

Not addressed.

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A. Exemptions in the open records statute

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1. Character of exemptions

There are 19 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; 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 exemptions are construed narrowly and specifically and thus are not easily abused. 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(o)(6).

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

  1. 29 Del. C. § 10002(o)(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) (adopting the definition in 19 Del. C. § 731).

  1. 29 Del. C.§ 10002(o)(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, “information regarding one’s assets, profits and losses, stock holdings, loans and collateral” is confidential financial information exempt from disclosure under FOIA. Del. Op. Att’y Gen., No. 87-I031 (Nov. 4, 1987); see 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 also 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 Jud. Watch v. Exp.-Imp. 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.

  1. 29 Del. C.§ 10002(o)(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 exempt from disclosure); News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (investigation files of professional engineers not public); see alsoDel. 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); Billingsley, 1980 WL 3043.
  2. 29 Del. C.§ 10002(o)(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.”
  3. 29 Del. C.§ 10002(o)(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.”
  4. 29 Del. C.§ 10002(o)(6): “Any records specifically exempted from public disclosure by statute or common law.” SeeGuy v. Jud. 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 Cnty., 2004 WL 1790140 (Del. Super. Aug. 4, 2004).

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).

  1. 29 Del. C.§ 10002(o)(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.”
  2. 29 Del. C.§ 10002(o)(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).
  3. 29 Del. C.§ 10002(o)(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 Cnty., 835 A.2d 141, 147 (Del. Super. 2003); see also Del. Op. Att’y Gen., No. 03-ib21 (Oct. 6, 2003).

The pending litigation exemption “turns on the identity of the requester and the purpose of the request.” Del. Op. Att’y Gen., No. 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.” Off. of the Pub. Def. 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 proceedings including arbitration); Del. Op. Att’y Gen., No. 03-ib10 (May 6, 2003); Mell, 835 A.2d at 149 (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 pre-suit 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 Del., 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).

  1. 29 Del. C.§ 10002(o)(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].” Seeid. § 10004(f); Chem. Indus. Council of Delaware, Inc., 1994 WL 274295. This exemption is related to the open meeting requirements of the Act.
  2. 29 Del. C.§ 10002(o)(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.”
  3. 29 Del. C.§ 10002(o)(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.”
  4. 29 Del. C.§ 10002(o)(13): “Any records in the possession of the Department of Correction where disclosure is sought by an inmate in the Department’s custody.” The Delaware criminal code also specifies that inmates shall not be provided “the Department of Correction Policy and Procedures Manuals, The Bureau of Prisons Policy and Procedures Manuals, nor any of the Department of Correction Facilities Operational Procedures, Administrative Regulations and Post Orders,” and the Department of Correction Policies and Procedures are confidential absent written authority from the Commissioner. 11 Del. C. § 4322(c), (d); see Ryle v. Delaware Dep’t of Just., 238 A.3d 849 (Del. 2020) (affirming summary dismissal of lawsuit over inmate’s request for the DOC Employee Code of Conduct); see also Hall v. Coupe, 2016 WL 3094406, at *1 (Del. Ch. May 25, 2016) (rejecting constitutional challenge to 11 Del. C. § 4322(c), (d)).
  5. 29 Del. C.§ 10002(o)(14): “Investigative files compiled or maintained by the Violent Crimes Compensation Board.”
  6. 29 Del. C.§ 10002(o)(15): “Any photographs, video recordings or audio recordings of a postmortem examination in the possession of the office of the Chief Medical Examiner.”
  7. 29 Del. C.§ 10002(o)(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. SeeDel. 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).
  8. 29 Del. C.§ 10002(o)(18)(a): “Any military service discharge document or documents, a discharge, separation notice, certificate of service, report of transfer or discharge, or any other notice or document which is evidence of severance or transfer from military service and which contains a service record from the armed forces of the United States, or any document that purports to represent a notice of separation from or service in any armed forces of the United States[.]” These records may only be released to the veteran, with the veteran’s consent, or to a court or public agency in certain circumstances, although they are public records 70 years after the date of separation or discharge. Id.§ 10002(o)(18)(b), (c).

s. 29 Del. C. § 10002(o)(19): “Any communications between a member of the General Assembly and that General Assembly member’s constituent, or communications by a member of the General Assembly on behalf of that General Assembly member’s constituent, or communications between members of the General Assembly.”

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B. Other statutory exclusions

1. Administrative Procedures Act.Certain agencies may be subject to the APA, which provides discretionary exemptions for 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 antitrust 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, until and 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:

(1) All applications to practice engineering in Delaware and associated documents;

(2) Records and information received by the Council relating to charges against any person that could result in disciplinary action; and

(3) All examination materials and related documents.

24 Del. C. § 2828(b).

6. 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.

7. 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. § 1212(a). Whenever protected health information is disclosed it shall be done in a nonidentifiable form, except when such disclosure is authorized by the individual. Id. § 1212(c). Raw data is not available for public inspection and is not considered a public record under the Act. Id. § 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(b).

8. 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).

9. 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), (a)(23), (b)(14), 4820(g).

10. 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 subject to the Act, but applications are not subject to the Act while the committee reviews to determine if the application is exempt. 11 Del. C. § 4113. If the committee determines an application or any portion is not exempt from FOIA, the applicant may withdraw the application within 10 business days of the determination, and the application will not be deemed a public record. Id. § 4113(c).

11. 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).

12. 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).

13. 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).

14. 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(o)(6) in Guy v. Judicial Nominating Commission, 659 A.2d 777 (Del. Super. 1995).

2. Social Security Numbers. The 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. Autopsy reports. Autopsy reports have been held exempt from the Act as investigatory files. SeeDel. 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.

5. Personal notes. Personal notes have not been subject to public access under the Act. Del. Op. Att’y Gen., No. 17-IB66 (Dec. 29, 2017); Del. Op. Att’y Gen., No. 02-ib34 (Dec. 21, 2002).

6. Draft documents. The Attorney General has opined that draft contracts under negotiation are exempt, and a deliberative process privilege exempts certain draft documents. Del. Op. Att’y Gen., No. 21-IB15 (July 1, 2021).

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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

There is no statutory segregability requirement; however, the Attorney General has instructed agencies to segregate exempt materials and disclose requested non-exempt materials in opinions. See Del. Op. Att’y Gen., No. 05-IB02 (Jan. 12, 2005); Del. Op. Att’y Gen., No. 77-029 (Sept. 27, 1977).

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G. Agency obligation to identify basis of redaction or withholding

The Act does not require this, but the Attorney General has ordered agencies to provide the bases of redactions or withholding in public records decisions. Del. Op. Att’y Gen., No. 17-IB06 (Mar. 21, 2017); Del. Op. Att’y Gen., No. 16-IB03 (Mar. 4, 2016).

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Autopsy reports have been held exempt from the Act as investigatory files and under Delaware’s Health Record Privacy Statute, 16 Del. C. § 1210 et seq. See Del. Op. Att’y Gen., No. 15-IB13 (Dec. 29, 2015); Lawson v. Meconi, 897 A.2d 740 (Del. 2006).

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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

Commercial or financial information is exempt if it is obtained from a person and is of a privileged or confidential nature. 29 Del. C. § 10002(o)(2); see, e.g., Del. Op. Att’y Gen., No. 96-IB30 (Sept. 25, 1996) (tax returns of parents of children applying for scholarships not public records); Del. Op. Att’y Gen., No. 87-I031 (Nov. 4, 1987) (financial data supplied to the Division of Alcoholic Beverage Control by applicants for liquor licenses exempt). But see Del. Op. Att’y Gen., No. 06-IB14 (July 12, 2006) (terms of loans between a town and its employees not exempt).

Trade secrets are also exempt. 29 Del. C. § 10002(o)(2). However, information provided 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. Bids, bid summaries and tabulations may be sealed prior to a contract award but must be available for public inspection after a contract is awarded, unless the bids or portions thereof are otherwise exempt. 29 Del. C. § 6923(c)(3), (j)(4); Del. Op. Att’y Gen., No. 18-IB26 (May 25, 2018).

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G. Collective bargaining records

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

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H. Economic development records

In 2017, the General Assembly enacted legislation for economic development that established a “public/private partnership” co-chaired by the Governor and led by a board of directors in large part appointed by the Governor. The statute specifically provides that the partnership’s IRS Form 990 returns, audited financial reports and the conflict, audit and expense policies are public records, and the financial records of private directors, which the private directors must submit to the General Assembly and the Governor, are not public records. See 29 Del. C. § 8706A(c), (f).

The Attorney General has determined the partnership is not a public body subject to FOIA disclosure requirements beyond those included in the legislation. Del. Op. Att’y Gen., No. 20-IB01 (Jan. 3, 2020).

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I. Election Records

Voter registration records are open to public inspection, although a voter’s Social Security number, date of birth, driver’s license number and telephone number are to be withheld. 15 Del. C. § 1305.

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J. Emergency Medical Services records

The Act exempts medical files if disclosure would amount to an unwarranted invasion of personal privacy, and Delaware’s Health Record Privacy Statute exempts personal health information absent informed consent of the individual or the individual’s lawful representative. 29 Del. C. § 10002(o)(1); 16 Del. C. § 1212(a).

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K. Gun permits

Records identifying individuals holding concealed weapons are exempt. 29 Del. C. § 10002(o)(11). However, firearms qualifications records for law enforcement personnel 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(o)(5). Likewise, Delaware’s FOIA has been amended to include an exemption for certain enumerated records that would jeopardize security. Id. § 10002(o)(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(o)(1). The Insurance Commission’s annual reports of malpractice claim statistics are public records, but other information reported to the Insurance Commission is confidential and even exempt from legal process. 18 Del. C. § 6820. The Delaware Medical Board also has the power to designate its records exempt from the Act. 24 Del. C. § 1713(14).

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N. Personnel records

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

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1. Salary

Public employees’ salaries are public records. Del. Op. Att’y Gen., No. 12-iib10 (July 27, 2012); Del. Op. Att’y Gen., No. 06-ib14 (July 12, 2006); Del. Op. Att’y Gen., No. 95-IB13 (Mar. 20, 1995)

Under the Act, payroll information for University employees 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). The Law Enforcement Officers’ Bill of Rights also seals internal disciplinary investigatory files of law enforcement officers. 92 Del. C. § 9200(b)(12).

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3. Applications

Employment applications are not public records as defined under the Act. 29 Del. C. § 10002(o)(1), (6); Del. Op. Att’y Gen., No. 05-ib20 (July 27, 2005) (noting the office has extended 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(l), (o); Del. Op. Att’y Gen., No. 06-ib17 (Aug. 21, 2006).

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6. Evaluations/performance reviews

Evaluations and performance reviews are exempt as part of an employee’s personnel file. See Del. Op. Att’y Gen., No. 02-ib24 (Oct. 1, 2002) (adopting the definition in 19 Del. C. § 731).

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7. Complaints filed against employees

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8. Other

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O. Police records

The Act exempts criminal law-enforcement investigatory files, criminal files and criminal records if disclosure would be an invasion of privacy, and intelligence files compiled for law-enforcement purposes if disclosure would pose a security risk. 29 Del. C. § 10002(o).

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 accident reports to the Department of Public Safety, but these accident reports are expressly not public records. 21 Del. C. §§ 313(b), 4203(d); see Jacobs v. City of Wilmington, 2002 WL 27817 (Del. Ch. Jan. 3, 2002) (holding nonmandatory traffic accident reports were not public records).

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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

Investigatory records are exempt if “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.” 29 Del. C. § 10002(o)(3).

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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. 11 Del. C. § 8513; Bd. of Managers of the Delaware Crim. Just. Info. Sys. v. Gannett Co., 2003 WL 1579170 (Del. Super. Jan. 17, 2003).

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7. Victims

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).

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8. Confessions

Not specified.

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9. Confidential informants

Agencies holding criminal records may redact prior to release information “which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.” 29 Del. C. § 10002(o)(4).

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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

Community notification of sex offender status and the qualifying offense is required under 11 Del. C. § 4121.

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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)

Delaware mandates its law enforcement officers to wear body-worn cameras while undertaking most police work.  See Del. Code Ann. tit. 11, § 8402A.  Footage from the cameras is not explicitly subject to disclosure under the state’s public records law.  Still, a public record is broadly defined as “information of any kind, owned, made, used, retained, . . . or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest,. . . regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.”  Del. Code Ann. tit. 29, § 10002.  However, any records pertaining to ongoing investigations, pending or potential litigation, or files compiled for law enforcement purposes that could pose a danger to welfare and security may be withheld.  Id.  A 2022 opinion by the Delaware Attorney General also found that when body camera footage constitutes an “investigative file”--i.e., a record “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”--it may be withheld.  Del. Op. Att'y Gen. 22-IB43 (2022).  The exemption attaches to body camera recordings as soon as law enforcement receives “initial notice of a potential issue,” ostensibly encompassing a significant portion of body camera video.  Id.  

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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

Public utility records are not exempt. Del. Op. Att’y Gen., No. 14-IB04 (July 18, 2014) (finding Delaware Broadband Fund a public body subject to FOIA).

 

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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

University records are generally not considered public records unless they convey (1) matters discussed in meetings by the full Board of Trustees, or (2) relate to the expenditure of public funds. 29 Del. C. § 10002(l). In Judicial Watch Inc. v. Delaware Department of Justice, the New Castle County Superior Court affirmed the denial of requests for copies of archived records from President Joe Biden’s Senate career that the president donated to the University of Delaware on grounds that the records did not fall within these two limited categories of University public records. 2021 WL 22550, at *1 (Jan. 4, 2021).

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1. Athletic records

Not specified.

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2. Trustee records

Boards of Trustees are “public bodies” subject to FOIA. 29 Del. C. § 10002(l).

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3. Student records

Not specified.

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4. School foundation/fundraising/donor records

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

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5. Research material or publications

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

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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

Records of the Office of Vital Statistics are generally confidential but become public records after significant periods of time have passed. 16 Del. C. § 3110.

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1. Birth certificates

Birth certificates are public records “[w]hen 72 years have elapsed after the date of birth.” 16 Del. C. § 3110(f).

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2. Marriage and divorce

Marriage records are public records when “50 years have elapsed after the date of marriage.” 16 Del. C. § 3110(f).

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3. Death certificates

Death certificates are public records when “40 years have elapsed after the date of death.” 16 Del. C. § 3110(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?

Public agencies are required to designate a “FOIA coordinator” who is identified on the agency’s website. 29 Del. C. § 10003(g). The coordinator is to track requests and help coordinate fulfillment of the requests.

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2. Does the law cover oral requests?

Pursuant to recent revisions, “[a]ll FOIA requests shall be made in writing to the public body in person, by U.S. mail, by e-mail, by fax, or online.” 29 Del. C. § 10003(f)(1).

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3. Required contents of a written request

“All requests shall adequately describe the records sought in sufficient detail to enable the public body to locate such records with reasonable effort. The requesting party shall be as specific as possible when requesting records.”
29 Del. C. § 10003(f)(2).

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4. 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 or electronic images. 8 Del. C. § 391(c).

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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 public body is required to respond as soon as possible, but in any event no later than 15 business days, “either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived.” 29 Del. C. § 10003(h).

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2. Informal telephone inquiry as to status

Making an 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. Id.

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.

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1. Time limit to file an appeal

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

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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

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

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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

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. 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, id. § 10005(e), may sue.

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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 of the Delaware Crim. Just. Info. Sys. 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. Seee.g., Bd. of Managers of the Delaware Crim. Just. 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 Cnty., 835 A.2d 141 (Del. Super. 2003).

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6. Time limit for filing suit

The 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 plaintiff may bring suit in 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

The custodian of records bears the burden of proof of justifying its denial of a public records request. 29 Del. C. § 10005(c).

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9. Judicial remedies available

Permitted remedies include “an injunction, a declaratory judgment, writ of mandamus and/or other appropriate relief.” 29 Del. C. § 10005(d).

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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 the Delaware Crim. Just. 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 the Delaware Crim. Just. 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(j); see also id. § 10002(k) (defining “public body”); id. § 10002(m) (defining “public business”). As a general matter, meetings must be held within the geographic jurisdiction of the public body. Id. § 10004(g).

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B. What governments are subject to the law?

All public bodies as defined in 29 Del. C. § 10002(k) are covered by the Act.

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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(k); 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(k); 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. See 29 Del. C. § 10002(k).

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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(k).

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2. Legislative bodies

Caucuses of the General Assembly are specifically exempted. 29 Del. C. § 10002(k); News-Journal Co. v. Boulden, 1978 WL 22024 (Del. Ch. May 24, 1978) (separation of powers doctrine prevented court from enforcing the Act against the House of Representatives, which held a closed quorum meeting in violation of the plain language of the Act).

A committee, subcommittee, ad-hoc committee, special committee or temporary committee created by an act of the General Assembly, however, is a public body. 29 Del. C. § 10002(k).

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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.

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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(k).

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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,” and each meeting of each full Board of Trustees shall be a “meeting.” 29 Del. C. § 10002(l).

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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(k).

While the Delaware Supreme Court emphasized in Delaware Solid Waste Authority v. News-Journal Co. that the “open meeting laws are liberally construed,, the General Assembly has excepted the proceedings of several boards from the purview of the open meeting law, in statutes other than FOIA. 480 A.2d 628, 637 (Del. 1984); see, e.g., 13 Del. C. § 2105 (Domestic Violence Coordinating Council); 24 Del. C. §§ 1191 (Board of Dental Examiners), 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”). Also, Human Relations Commission meetings that involve conciliation or mediation are exempt. 31 Del. C. § 3004.

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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(k). This includes a committee appointed by the General Assembly. Id. Agencies covered by the APA are required to hold public hearings. Id. §§ 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(k).

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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(j). The “public body” is a defined term. Id. § 10002(k). 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(m); 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).

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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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) (standing committee meetings with less than the five-member quorum present were not required to be open). 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(j).

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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(m). But see id. § 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 “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., No. 97-ib22 (Nov. 24, 1997) (citing McLaughlin, 377 A.2d at 362). 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 privilege 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

A member with a disability may attend a public meeting through electronic means of communication. 29 Del. C. § 10006A.

A public body may hold a virtual meeting if: (1) the public notice includes information regarding how the public can monitor or participate in the meeting, (2) the meeting has an anchor location in the geographic jurisdiction of the public body, (3) the identity of a member or witness is verified, and the actions of a member are authenticated, in a manner satisfactory to the presiding officer or chair, and (4) all participating members and witnesses can either hear the comments of each member or witness or hear the comments of and view each member or witness. Id. § 10006A(c).

A public body may hold a virtual meeting during a state of emergency without an anchor location if it meets the above criteria, and:

(1) The virtual meeting is preceded by the same public notice as required under § 10004 of this title, except that notice of the public meeting does not need to be conspicuously posted at the principal office of the public body holding the meeting or where meetings of the public body are regularly held.

(2) If all of the members of the public body are elected by the public to serve on the public body, all of the following must occur:

a. A document that is used during the meeting by a member or witness, and that is accepted by the presiding officer or chair, is immediately transmitted to each member or witness participating in the meeting.

b. The public is able to review a recording of the meeting within a reasonable time after the meeting concludes.

Id. § 10006A(e).

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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).

Virtual meetings are permissible if the public body meets the conditions listed in 29 Del. C. § 10006A(c).

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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 also 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). A notice must include the times, dates and places of such meetings. See 29 Del. C. § 10004(e)(2); Ianni, 1986 WL 9610.

Notice must be given to the public. 29 Del. C. § 10004(e)(2), (3). Times, dates and places of meetings are required in a notice. See id. § 10004(e)(2). Notice in the form of a memorandum given to members of a committee but not the public at large is 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)(5); Ianni, 1986 WL 9610 (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)(3). 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); Del. Op. Att’y Gen., No. 97-ib20 (Oct. 20, 1997) (“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. 00-ib07 (Apr. 28, 2000).

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 be briefly set forth in the agenda. 29 Del. C. § 10004(e)(6). A general description in the agenda should be sufficient to draw attention to the significance of the subject to be discussed. Ianni, 1986 WL 9610; Del. Op. Att’y Gen., No. 05-ib30 (Oct. 24, 2005).

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

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c. Minutes

Minutes should contain 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), and 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 id. § 10002(o)(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. Id. § 10004(e)(4).

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b. Notice requirements

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)(4); 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)(4). 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 notices lacked explanations why the seven-day requirement was not met for several special meetings and Town Council had to correct violations in open session at a properly noticed meeting); 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).

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), (g)(3).

The penalty for failure to give adequate notice may be that the actions taken at the meeting are voidable. Id. § 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 id. § 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, and only for nine specific purposes. 29 Del. C. § 10004(b), (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).

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b. Notice requirements

Notice must be given 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)(4). 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).

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).

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. Id. 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

If a virtual meeting is held during a state of emergency, the public must be able to review a recording of the meeting within a reasonable time after the meeting concludes. 29 Del. C. § 10006A(e).

Like written minutes, tape recordings of meetings 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

If a virtual meeting is held during a state of emergency, the public must be able to review a recording of the meeting within a reasonable time after the meeting concludes. 29 Del. C. § 10006A(e).

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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?

Any action taken at a meeting in violation of the Act may be voidable by the Court of Chancery. 29 Del. C. § 10005(a). A successful plaintiff may be awarded attorneys’ fees. Id. § 10005(c).

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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 open meeting statute. Id. § 10004(h).

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2. Description of each exemption

a. A public body may call for an executive session closed to the public for the following purposes:

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 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); Common Cause of Del. v. Red Clay Consol. Sch. Dist., 1995 WL 733401 (Del. Ch. Dec. 5, 1995); 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); 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). 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.” SeeDel. 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., No. 99-ib05 (May 12, 1999); Del. Op. Att’y Gen., No. 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.

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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. 29 Del. C. § 10004(a).

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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 id. § 10002(o)(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

Grand jury proceedings 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 id. § 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. §§ 10002(o)(9), 10004(b)(4), 10004(b)(6).

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K. Negotiations and collective bargaining of public employees

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 proceedings are closed. 29 Del. C. § 10004(h)(5).

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M. Patients, discussions on individual patients

Not specifically addressed but discussions on specific patients 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

Hearings on student disciplinary cases 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 the complaint occurred more than six months ago, the Attorney General could not take any further action with regard to the 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

Requests 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).

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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(a), (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

Actions taken at a meeting in violation of the Act may be voided by the Court of Chancery. 29 Del. C. § 10005(a).

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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 Court of Chancery.

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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). 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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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. Id. § 10005(d). Delaware courts and the Attorney General, however, are cautious to void an action taken at meeting held in violation of the Act. Ianni v. Dep’t of Elections, 1986 WL 9610 (Del. Ch. Aug. 29, 1986) (expressing concern about using injunction to revise action of Board of Election); 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); see also Wilmington Fed’n of Teachers v. Howell, 374 A.2d 832 (Del. 1977) (in analyzing an earlier version of FOIA, declaring invalidation of public body’s decision constitutes an extreme sanction). But see Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994) (ordering regulations void where deliberations about the regulations largely took place behind closed doors).

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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?

The Attorney General has also determined that “FOIA does not require a public body to allow members of the public to speak during a public meeting,” but if it does permit public comment, “then it must treat members of the public fairly and even-handedly.” Del. Op. Att’y Gen., No. 17-IB07 (Mar. 28, 2017); Del. Op. Att’y Gen., No. 04-IB13 (June 1, 2004).

At the same time, 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).

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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. See Del. Op. Att’y Gen., No. 05-IB01 (Jan. 3, 2005) (time limit on public comment permissible, but content restriction not).

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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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