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Proposed DNREC FOIA Regulations

The Department of Natural Resources and Environmental Control (DNREC) has published below a draft Freedom of Information Act Regulation for their Department. 

DNREC is holding a public hearing on Thursday 10/26/00 at 7:00 p.m. in Dover. 

Susan Baker of DNREC can be contacted at subaker@state.de.us 

Department of Natural Resources and Environmental Control 

Freedom of Information Act Regulation 
September 12, 2000 

1. Purpose 

The purpose of this regulation is to prescribe procedures relating to the 
inspection and copying of public records retained by the Department of 
Natural Resources and Environmental Control ("the Department") pursuant to 29 
Del. C. Chapter 100, the Freedom of Information Act ("FOIA"). It is the 
Department's goal in establishing this regulation to maximize the amount of 
information available to the public, establish a reasonable fee structure for 
copying public records, and to streamline procedures used to disseminate this 
information. 

This regulation applies to the Department in dealing with requests from the 
public for information as set forth in the Freedom of Information Act. This 
regulation does not apply to the Department in its normal course of business 
with Federal, State, or local agencies, nor to private parties (corporate or 
individual) with whom the Department is conducting business (permit, 
contractual agreement, licenses, etc.), provided the public records are 
germane to the business being conducted. 

It is the intent of the Department, as well as the State of Delaware, that 
public business be performed in an open and public manner so that the 
citizens will have the opportunity to be advised of the performance of 
Department officials and of their decisions. In accordance with Delaware's 
FOIA laws, the public has the right to "reasonable access" to public 
records. FOIA provides that 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. All requests for 
information made pursuant to FOIA, shall be processed in the manner 
prescribed below. 

2. Definitions 

:Citizen of the State" means a citizen of the State of Delaware; one who 
resides/domiciles, owns property or pays taxes in Delaware or has a business 
address in the State of Delaware; one who has a current Delaware driver's 
license; or one who is incorporated within the State of Delaware. 

"Confidential information" means information determined by the Secretary to 
constitute a trade secret, or commercial or financial information which is of 
a privileged or confidential nature. 

"Department" means the Department of Natural Resources & Environmental 
Control. 

"Responsible Official" means: For a Corporation: a President, Vice-President, Secretary, or Treasurer of the corporation or any other person who performs similar policy or decision 
making functions for the corporation, or a duly authorized representative of 
such person approved in advance by the Department including a successor in 
interest to one of these persons if the Department is notified in writing of 
the substitution of the party. 

For a Partnership or Sole Proprietorship: a general partner or the 
proprietor, respectively, or the delegation of authority to a representative 
approved in advance by the Department including a successor in interest to 
one of these persons if the Department is notified in writing of the 
substitution of the party. 

For a Municipality, State, Federal, or other public agency: Either a 
principal executive officer or ranking elected official including a successor 
in interest to one of these persons if the Department is notified in writing 
of the substitution of the party. 

"Secretary" means the Secretary of the Department of Natural Resources & 
Environmental Control or the Secretary's designee. 

"Trade Secret" means a formula, pattern, device or compilation of information 
which may be used to obtain competitive advantage over others. 

3. Availability of Records 

3.1 Access 

3.1.a Public records shall be open to review and reproduction by any 
citizen of the State of Delaware. The Department may require verification of 
citizenry before considering the request to provide access to public 
records. If the requestor does not submit the verification upon the 
Department's request, the request may be denied. 

3.1.b The Department will provide reasonable access and facilities for 
reviewing public records during regular business hours. 

3.1.c The Department shall make all requested records available for review 
by requestor unless such records or portions of records are determined by the 
Secretary to be confidential in accordance with Section 6 of this regulation 
or otherwise exempted from disclosure as records deemed non-public pursuant 
to 29 Del. C. 10002(d). 

3.1.d The Department reserves the right to deny any request in part or in 
full which does not comply with the Form of Request procedures pursuant to 

Section 4.1 of this regulation and/or the provisions of the Freedom of 
Information Act, as amended. 

3.2 Department Records Review 

3.2.a Prior to disclosure, records will be reviewed to insure that those 
records or portions of records deemed non-public are removed. 

3.2.b Upon request, the Department will provide a log of records which may 
have been deemed non-public. The log will include the following information: 

(1) the document's author, 
(2) the addressee, 
(3) the date of the document, 
(4) the title of the document or a brief explanation of the document's contents, and 
(5) the statutory exemption. 

3.2.c The types of records deemed non-public are as contained in29 Del. C. 10002(d). 

3.2.d Departmental regulations, brochures, pamphlets, informational 
bulletins, and other such information are not subject to this regulation. 

4. Record Request and Response Procedures 

4.1 Form of Request 

4.1.a Requests for access to records shall be made in writing and shall 
adequately describe the records sought in sufficient detail to enable the 
Department to locate the records with reasonable effort. The request may be 
denied in part or in full and returned to the requestor for the following reasons: 

(1) The request does not adequately describe the records; 
(2) The request requires the Department to perform research or to assemble 
information not previously compiled; or 
(3) Reasons set forth in Section 3.1.d. or as addressed in other areas of 
this regulation not specified here. 

4.2 Reproduction of Records 

4.2.a The copying of any requested public records may be performed by a 
Department employee and may be provided to the requestor as follows: 

(1) If 25 pages or less are requested to be copied, the Department may, if 
time and personnel are available, make the copies at the time of the review. 
If personnel are not available, the Department may arrange to copy and mail 
the records to the requestor. In the alternative, the requestor may elect to 
pick up copies during regular business hours and submit payment at that time. 

(2) If over 25 pages are requested to be copied the Department may arrange to 
copy and mail the records to the requestor. In the alternative, the 
requestor may elect to pick up copies during regular business hours and 
submit payment at that time. 

(3) If over 100 pages are requested to be copied, the requestor may be 
required to bring in both copier and personnel to make the desired copies. 

(4) The Department shall have discretion based on circumstances involved to 
make decisions regarding copying. 

(5) Fragmentation of requests shall not be allowed. 

5. Fees 

5.1 Administrative Fees: 

5.1.a Charges for administrative fees include: 

(1) Staff time associated with processing FOIA requests; 
(2) Locating and reviewing files; 
(3) Monitoring file reviews; 
(4) Generating computer records (electronic or print-outs); and 
(5) Preparing logs of records deemed non-public. 

5.1.b Calculation of Administrative Charges: Administrative charges will 
be calculated as follows: 

(1) Administrative charges will be billed to the requestor per quarter hour. 
These charges will be billed at the current, hourly paygrade rate (pro-rated 
for quarter hour increments) of the employee(s) performing the service. 
Administrative charges will be in addition to any copying charges. 

(2) Appointment Rescheduling/Cancellation - Requestors that do not 
reschedule or cancel appointments to view files at least one full business 
day in advance of the appointment may be subject to the administrative 
charges incurred by the Department in preparing the requested records. The 
Department will prepare an itemized invoice of these charges and mail to the 
requestor for payment. 

5.2 Photocopying Fees - The following are charges for photocopies of public 
records made by Department personnel: 

5.2.a Standard Sized, Black and White Copies 
The charge for copying standard sized, black and white public records shall 
be $0.10 per printed page (i.e. single-sided copies are $0.10 and 
double-sided copies are $0.20). This charge applies to copies on the 
following standard paper sizes: 

(1) 8.5" x 11"; 
(2) 8.5" x 14"; and 
(3) 11" x 17" 

5.2.b Oversized Copies/Printouts 

The charge for copying oversized public records (including, but not limited 
to: blueprints, engineering drawings, GIS print-outs, and maps) shall be as 
follows: 

(1) 24" x 26"- $2.00 each; 
(2) 24" x 36" - $3.00 each; 
(3) 30" x 42" - $5.00 each; and 
(4) all copies larger than 30" x 42" shall be calculated at the rate of $0.60 
per square foot. 

5.2.c Color Copies/Printouts 
The charge for color copies or color printouts shall be as follows: 

(1) 8.5" x 11" - $1.00 per page; 
(2) 8.5" x 14" - $1.50 per page; 
(3) 11" x 17" - $2.00 per page; and 
(4) all color copies larger than 11" x 17" (including, but not limitedto: 
blueprints, engineering drawings, photographic imagery,GIS print-outs, and 
maps) shall be calculated at the rate of$2.50 per square foot. 

5.2.d Microfilm and/or Microfiche Printouts 

Microfilm and/or microfiche printouts, made by Department personnel on 
standard sized paper, will be calculated at $0.15 per printed page. 

5.2.e Electronically Generated Records 

Charges for copying records maintained in an electronic format will be 
calculated by the material costs involved in generating the copies 
(including, but not limited to: magnetic tape, diskette, or compact disc 
costs) and administrative costs. 

(1) In the event that requests for records maintained in an electronic format 
can be electronically mailed to the requestor, only the administrative 
charges in preparing the electronic records will be charged. 

5.2.f Other Copying Fees 

The Department, at its discretion, may arrange to have records copied by an 
outside contractor if the Department does not have the resources or equipment 
to copy such records. In this instance, the requestor will be liable for 
payment of these costs. 

5.3 Payment 

5.3.a For those requests with a combined total of copy and administrative 
charges of $15.00 or less, the Department will waive the charges in their 
entirety. For those requests exceeding $15.00, no charges will be waived and 
the Department will expect payment in full as described below. 

5.3.b Payment for copies and/or administrative charges will be due at the 
time copies are released to the requestor. The Department reserves the right 
to refuse to make copies for requestors who have outstanding balances. 

5.3.c The Department may require pre-payment of copying and administrative 
charges prior to mailing copies of requested records and/or in preparing logs 
of records deemed non-public. 

5.3.d Department personnel will maintain a receipt register and, upon 
request, provide the requestor with a receipt when payment is received. 

6. Requests for Confidentiality 

A person may request that certain records or portions of records submitted to 
the Department be held confidential. Certain information may be determined 
confidential if its disclosure could potentially cause substantial 
competitive harm to the person or business from whom the information was 
obtained. 

The following section sets forth procedures and criteria by which the 
Department will determine confidentiality of records or portions of records. 

6.1 Procedure 

6.1.a In order for the Department to make a determination that information 
submitted is of a confidential nature, and therefore to be afforded 
confidential status, a request must be made in writing to the Secretary at 
the time the record is submitted. The request shall provide substantiation 
for the allegation that the information should be treated as confidential.The 
request shall contain the following information: 

(1) The measures taken to guard against undesired disclosure of the 
information to others; 
(2) The extent to which the information has been disclosed to others, and the 
precautions taken in connection therewith; 
(3) Whether disclosure of the information would be likely to result in 
substantial harmful effects on their competitive position, and if so, what 
those harmful effects would be, why the effects should be viewed as 
substantial, and an explanation of how the disclosure would cause such 
harmful effects; and 
(4) Verification that significant effort or money has been expended in 
developing the information. 

6.1.b The following information shall be submitted: 

(1) Two public versions of the entire package of information that is 
submitted for determination, with alleged confidential information redacted 
(this version will be made available for public review).The public versions 
shall correspond page for page with the confidential versions, with the 
confidential portions having been redacted; 
(2) Two confidential versions of the entire package of information that is 
submitted for determination, that includes the alleged confidential 
information (this version will be used internally for technical review); and 
(3) Certification through a separate, notarized affidavit that the 
information is either trade secret, or commercial/financial information that 
is of a privileged or confidential nature. The affidavit will be signed by 
the Responsible Official. 

6.1.c The burden lies with the party asserting the claim of 
confidentiality. 

A unilateral assertion that a record is confidential is insufficient evidence to 
support the Secretary in making a determination of confidentiality pursuant 
to this privilege. 

6.1.d After a final determination of confidentiality has been issued by the 
Secretary, any further submissions containing the same confidential information
shall be deemed to be confidential based on the prior determination if the 
Department determines that: 

(1) the Responsible Official notified the Department in writing 
contemporaneously with the later submission that the later submission
contains information previously determined to be confidential; and 
(2) the later submission identifies with particularity the prior confidentiality 
determination; and 
(3) the notice to the Department met the requirements of Section 6.1.b. 
above relating to submission of multiple and redacted copies, and included 
the required affidavit of the Responsible Official; and 
(4) the later representations of confidentiality are sufficient to meet the 
requirements for a confidentiality determination. 

6.2 Criteria 

6.2.a The Secretary may determine that the information submitted is entitled to 
confidential treatment if all of the following criteria are met: 

(1) Reasonable measures to protect the confidentiality of the information and 
an intention to continue to take such measures have been satisfactorily shown; 
(2) The information is not, and has not been, reasonably obtainable by other 
persons (other than governmental bodies) by use of legitimate means (other 
than court enforced order) without prior consent; 
(3) No statute specifically requires disclosure of the information; 
(4) A satisfactory showing has been made that disclosure of the information 
is likely to cause substantial harm to their competitive position; and 
(5) Verification that significant effort or money has been expended in 
developing the information. 

6.3 Final Determination 

The Secretary will make a final determination as to whether the information 
shall be considered public or confidential based upon a review of the 
information submitted pursuant to this Section. The person making the 
confidentiality request will be notified in writing of the Secretary's determination. 

6.3.a If the Secretary determines that disclosure of the information would 
violate 29 Del. C. 10002(d)(2), the information will be deemed confidential 
indefinitely. 

6.3.b If the Secretary finds that the information is not entitled to confidential 
treatment, the information will be considered public. 

6.4 Defense of Secretary's Determination 

6.4.a Verification of Information 

There will be instances in which the Secretary may be unable to verify the 
accuracy of the information submitted for determinations of confidentiality. 
The Secretary relies heavily upon the information furnished by the affected 
party in order to make a reasonable determination of confidentiality. 

6.4.b Information Determined Confidential 

If the Secretary makes a confidentiality determination that certain 
information is entitled to confidential treatment, and the Department is sued 
by a requestor for disclosure of that information, the Department will: 

(1) Notify each affected party of the suit; 
(2) Call upon each affected party to furnish assistance where necessary in 
preparation of the Department's defense; 
(3) Defend the final confidentiality determination, but expect the affected 
party to cooperate to the fullest extent possible in the defense.


Let us know what you think. 

Email us at 

GreenDel@dca.net

or contact
Alan J. Muller, Exec. Director
P.O. Box 69
Port Penn, DE 19731
302-834-3466 Voice
302-836-3005 FAX

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This page was last updated on October 28, 2000.
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