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Current Freedom of Information Act Law:


CHAPTER 100.
FREEDOM OF INFORMATION ACT


10001. Declaration of policy.
10002. Definitions.
10003. Examination and copying of public records.
10004. Open meetings.
10005. Enforcement.

§ 10001. 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.


(60 Del. Laws, c. 641, § 1; 65 Del. Laws, c. 191, § 1.)


§ 10002. Definitions.


(a) "Public body" means, unless specifically excluded, any regulatory,
administrative, advisory, executive, appointive or legislative body of the
State, or of any political subdivision of the State, including, but not
limited to, any board, bureau, commission, department, agency, committee, ad
hoc committee, special committee, temporary committee, advisory board and
committee, subcommittee, legislative committee, association, group, panel,
council or any other entity or body established by an act of the General
Assembly of the State, or established by any body established by the General
Assembly of the State, or appointed by any body or public official of the
State or otherwise empowered by any state governmental entity, which:
(1) Is supported in whole or in part by any public funds; or
(2) expends or disburses any public funds, including grants, gifts or
other similar disbursals and distributions; or
(3) is impliedly or specifically charged by any other public official,
body, or agency to advise or to make reports, investigations or
recommendations. Public body shall not include the General Assembly of the
State, nor any caucus thereof, or committee, subcommittee, ad hoc committee,
special committee or temporary committee.

(b) "Public business" means any matter over which the public body has
supervision, control, jurisdiction or advisory power.

(c) "Public funds" are those funds derived from the State or any political
subdivision of the State.

d) "Public record" is 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. For purposes of this chapter, the following records shall not
be deemed public:
(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;
(2) Trade secrets and commercial or financial information obtained from a
person which is of a privileged or confidential nature;
(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;


(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;

(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;
(6) Any records specifically exempted from public disclosure by statute
or common law;
(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;
(8) Any records involving labor negotiations or collective bargaining;
(9) Any records pertaining to pending or potential litigation which are
not records of any court;
(10) Subject to subsection (f) of § 10004 of this title with respect to
release of minutes of executive sessions, any record of discussions held in
executive session pursuant to subsections (b) and (c) of § 10004 of this
title;
(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;
(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;
(13) Any records in the possession of the Department of Correction where
disclosure is sought by an inmate in the Department's custody; or
(14) Investigative files compiled or maintained by the Violent Crimes
Compensation Board.

(e) "Meeting" means the 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.

(f) "Agenda" shall include but is not limited to a general statement of the
major issues expected to be discussed at a public meeting, as well as a
statement of intent to hold an executive session and the specific ground or
grounds therefore under subsection (b) of § 10004 of this title.

(g) "Public body," "public record" and "meeting" shall not include
activities of the University of Delaware and Delaware State University,
except that the Board of Trustees of the University and the Board of Trustees
of the University shall be "public bodies," and University and University
documents relating to the expenditure of public funds shall be "public
records," and each meeting of the full Board of Trustees of either institution
shall be a "meeting."


(60 Del. Laws, c. 641, § 1; 61 Del. Laws, c. 55, § 1; 63 Del. Laws, c. 424, §
1; 64 Del. Laws, c. 113, § 1; 65 Del. Laws, c. 191, §§ 2-6; 66 Del. Laws, c.
143, § 1; 67 Del. Laws, c. 281, § 194; 69 Del. Laws, c. 67, § 2; 69 Del.
Laws, c. 250, § 2; 70 Del. Laws, c. 186, § 1.)


§ 10003. Examination and copying of public records.


(a) All public records shall be open to inspection and copying by any
citizen of the State during regular business hours by the custodian of the
records for the appropriate public body. Reasonable access to and reasonable
facilities for copying of these records shall not be denied to any citizen.
If the record is in active use or in storage and, therefore, not available at
the time a citizen requests access, the custodian shall so inform the citizen
and make an appointment for said citizen to examine such records as
expediently as they may be made available.

Any reasonable expense involved in the copying of such records shall be
levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish rules and
regulations regarding access to public records as well as fees charged for
copying of such records.


(60 Del. Laws, c. 641, § 1.)


§ 10004. Open meetings.


(a) Every meeting of all public bodies shall be open to the public except
those closed pursuant to subsections (b), (c), (d) and (g) of this section.

(b) A public body may call for an executive session closed to the public
pursuant to subsections (c) and (e) of this section, but only for the
following purposes:
(1) Discussion of an individual citizen's qualifications to hold a job or
pursue training unless the citizen requests that such a meeting be open. This
provision shall not apply to the discussion by a licensing board or
commission which is subject to the provisions of § 8810 of this title, of an
individual citizen's qualifications to pursue any profession or occupation
for which a license must be issued by the public body in accordance with
Delaware law;
(2) Preliminary discussions on site acquisitions for any publicly funded
capital improvements;
(3) Activities of any law-enforcement agency in its efforts to collect
information leading to criminal apprehension;
(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;

(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) Discussion of the content of documents, excluded from the definition
of "public record" in § 10002 of this title where such discussion may
disclose the contents of such documents;
(7) The hearing of student disciplinary cases unless the student requests
a public hearing;
(8) The hearing of employee disciplinary or dismissal cases unless the
employee requests a public hearing;
(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.

(c) A public body may hold an executive session closed to the public upon
affirmative vote
of a majority of members present at a meeting
of the public body. The vote on the question of holding an executive session
shall take place at a meeting of the public body which shall be open to the
public, and the results of the vote shall be made public and shall be
recorded in the minutes.

The purpose of such executive sessions shall be set forth in the agenda and
shall be limited to the purposes listed in subsection (b) of this section.
Executive sessions may be held only for the discussion of public business,
and all voting on public business must take place at a public meeting and the
results of the vote made public.

(d) This section shall not prohibit the removal of any person from a public
meeting who is willfully and seriously disruptive of the conduct of such
meeting.

(e) (1) This subsection concerning notice of meetings shall not apply to any
emergency meeting which is necessary for the immediate preservation of the
public peace, health or safety, or to the General Assembly.
(2) All public bodies shall give public notice of their regular meetings
and of their intent to hold an executive session closed to the public, at
least 7 days in advance thereof. The notice shall include the agenda, if such
has been determined at the time, and the dates, times and places of such
meetings; however, the agenda shall be subject to change to include
additional items including executive sessions or the deletion of items
including executive sessions which arise at the time of the public body's
meeting.
(3) All public bodies shall give public notice of the type set forth in
paragraph (2) of
this subsection of any special or rescheduled meeting as soon as reasonably
possible, but in any event no later than 24 hours before such meeting. A
special or rescheduled meeting shall be defined as one to be held less than 7
days after the scheduling decision is made. The public notice of a special or
rescheduled meeting shall include an explanation as to why the notice
required by paragraph (1) of this subsection could not be given.
(4) Public notice required by this subsection shall include, but not be
limited to, conspicuous posting of said notice 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, and making a reasonable
number of such notices available.

(5) When the agenda is not available as of the time of the initial posting of
the public notice it shall be added to the notice at least 6 hours in advance
of said meeting, and the reasons for the delay in posting shall be briefly
set forth on the agenda.


(f) Each public body shall maintain minutes of all meetings, including
executive sessions, conducted pursuant to this section, and shall make such
minutes available for public inspection
and copying as a public record. Such minutes
shall include a record of those members present and a record, by individual
members (except where the public body is a town assembly where all citizens
are entitled to vote), of each vote taken and action agreed upon.

Such 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, but no longer.

(g) Every regularly scheduled meeting of a public body shall be held within
the geographic jurisdiction of that public body. All such other meetings
shall be held as follows:
(1) A public body serving any political subdivision of the State,
including, but not limited to, any city, town or school district, shall hold
all such other meetings within its jurisdiction or the county in which its
principal office is located, unless it is school board training that has been
approved by the Secretary of Education as beneficial to school board
development activities.
(2) For the purposes of this subsection, a "regularly scheduled meeting"
shall mean any meeting of a public body held on a periodic basis.
(3) The provisions of this subsection, insofar as they are not
practicable, shall not apply to any emergency meeting which is necessary for
the immediate preservation of the public peace, health or safety, or to a
meeting held by a public body outside of its jurisdiction which is necessary
for the immediate preservation of the public financial welfare.

(h) This section shall not apply to the proceedings of:
(1) Grand juries;
(2) Petit juries;
(3) Special juries;
(4) The deliberations of any court;
(5) The Board of Pardons and Parole;
(6) Public bodies having only 1 member;
(7) a. The Violent Crimes Compensation Board may close any meeting to the
public where:
1. The claim to be considered derives from any sexual offense within
the definitions of a crime in § 9002 of Title 11.
2. The claims to be considered derives from any offense by a child,
as defined in this section, unless such child has been deemed amenable to the
jurisdiction of a criminal court as to the matter before the Board.
3. The claim to be considered derives from any matter not yet
adjudicated.
b. The Board shall produce a complete record of any proceedings closed to
the public which record may be denied to anyone seeking access for good cause
shown; and
(8) The deliberations of the following agencies for any case decision
governed by the Administrative Procedures Act in Chapter 101 of this title:
a. State Human Relations Commission;
b. Industrial Accident Board; and
c. Tax Appeals Board.

(i) In an enforcement action pursuant to § 10005 of this title, a citizen or
the Attorney General, as the case may be, may seek the forfeiture of all or
part of the compensation of members of a board, commission or other public
body for any closed meeting which such board, commission or other public body
closed knowing that such action violated this chapter. Such forfeiture may
only be ordered by the Court if the Court makes a specific finding that the
board, commission or public body had no good faith basis to believe that the
meeting could be closed. It shall be an absolute defense that an individual
never voted in favor of the closed meeting. If the board, commission or
public body also met validity for other purposes on the same day as the
meeting which violated the act, such valid action shall be considered by the
Court in determining the extent of any forfeiture award.


(60 Del. Laws, c. 641, § 1; 63 Del. Laws, c. 269, § 1; 65 Del. Laws, c. 191,
§§ 7-12; 66 Del. Laws, c. 419, § 1; 67 Del. Laws, c. 367, §§ 1, 2; 71 Del.
Laws, c. 38, § 1; 71 Del. Laws, c. 117, § 1; 71 Del. Laws, c. 191, § 1; 71
Del. Laws, c. 193, § 1.)


§ 10005. Enforcement.

(a) Any action taken at a meeting in violation of this chapter may be
voidable by the Court of Chancery. Any citizen may challenge the validity
under this chapter 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.

(b) Any citizen denied access to public records as provided in this chapter
may bring suit within 60 days of such denial. Venue in such cases where
access to public records is denied shall be placed in a court of competent
jurisdiction for the county or city in which the public body ordinarily meets
or in which the plaintiff resides.

(c) In any action brought under this section, the burden of proof shall be
on the custodian of records to justify the denial of access to records, and
shall be on the public body to justify a decision to meet in executive
session or any failure to comply with this chapter.

(d) Remedies permitted by this section include an injunction, a declaratory
judgment, writ of mandamus and/or other appropriate relief. The court may
award attorney fees and costs to a successful plaintiff of any action brought
under this section. The court may award attorney fees and costs to a
successful defendant, but only if the court finds that the action was
frivolous or was brought solely for the purpose of harassment.

(e) Any citizen may petition the Attorney General to determine whether a
violation of this chapter has occurred or is about to occur. The petition
shall set forth briefly the nature of the alleged violation. Upon receiving a
petition, the Attorney General shall, within 10 days, notify in writing the
custodian of records or public body involved. 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 shall provide the citizen
and any custodian of records or public body involved with a copy of the
determination. If the Attorney General finds that a violation of this chapter
has occurred or is about occur, the citizen may:
(1) File suit as set forth in this chapter; or
(2) request in writing that the Attorney General file suit on the
citizen's behalf.
If such request is made, the Attorney General may file suit, and shall within
15 days notify the citizen of the decision to file suit, unless the custodian
of records or public body has agreed to comply with this chapter. The citizen
shall have 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.

(f) Subsection (e) of this section shall not apply to an alleged violation
by an administrative office or officer, agency, department, board, commission
or instrumentality of state government which the Attorney General is obliged
to represent pursuant to § 2504 of this title.


(60 Del. Laws, c. 641, § 1; 65 Del. Laws, c. 191, § 13; 66 Del. Laws, c. 354,
§§ 1, 2.)


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This page was last updated on August 29, 2000.
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