Public Bodies, Records Access, and Privacy in Delaware

The Delaware Freedom of Information Act or FOIA for short is a public records access and data protection law that was enacted in 1977. The Delaware FOIA was passed in accordance with the federal FOIA law that was passed in 1967, which granted American citizens the right to request access to public records that are maintained by the U.S. federal government. Subsequently, the Delaware FOIA outlines the legal grounds upon which residents of the state are permitted to request access to inspect and copy the public records and information that is maintained by their respective state government institutions. Furthermore, the law also establishes specific public records and information that are exempt from public disclosure.

How are public records defined under the Delaware FOIA?

The Delaware FOIA defines a public record as “information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.” Alternatively, as it concerns the scope and applicability of the law, the Delaware FOIA applies to any “regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State.”

What are the duties of public bodies under the Delaware FOIA?

Under the provisions of the Delaware FOIA law, the responsibilities that government agencies and public bodies have as it pertains to making their public records and information available for inspection to members of the general public include but are not limited to:

• Public bodies are responsible for formulating rules and regulations concerning access to their public records and information, as well as the fees that a Delaware citizen will need to pay when looking to access said records.
• Public bodies are prohibited from charging a Delaware resident more than 10 cents per page to access their public records, with the first 20 pages free.
• Public bodies must ensure that their public records and information are available for inspection during regular business hours, and said entities are forbidden from denying a citizen’s request to reasonably access said records.
• Public bodies are obligated to respond to a request to access their public records as soon as possible, but no later than 15 days after the receipt of the request.
• Public bodies are required to implement and maintain an online web portal that will enable Delaware citizens to submit FOIA requests via the internet.
• Public bodies are required to provide reasonable assistance to members of the public as it relates to the public records that they are permitted to access, inspect, and copy under the law.

What public records are exempt from disclosure under the Delaware FOIA?

As is the case with any sunshine or open records law at the U.S. state level, certain government records and information that is maintained by public bodies operating within the state of Delaware are exempt from disclosure under the state’s FOIA law. To this point, some of the public records that are exempt under the law include the following:

• Current police investigations.
• Public library records.
• Labor negotiations records.
• Autopsy photos and videos.
• The emails of the Delaware General Assembly, as well as their staff members.
• Military service discharge documents.
• Anonymous charitable contributions to the public.
• Criminal records that are deemed private or personal.
• Any records or information that must remain confidential under other applicable federal or state legislation.
• Any records that would be of risk to an individual within the state of Delaware, or critical infrastructure within the state.

What are the penalties for violating the Delaware FOIA?

With respect to the enforcement of the law, the numerous sections set forth in the Delaware FOIA are enforced by the state attorney general. With this being said, the law grants citizens of the state the right to file a complaint with the attorney general in instances where they feel as though their request to access the public records of a particular public body has been denied unjustly or unfairly. In instances where the Delaware attorney general determines that a violation of the law has occurred, the citizen who has filed the complaint also reserves the right to bring forth civil action against the public body that denied their request.

The Delaware Freedom of Information Act provides residents of the state with the legal right to access, inspect, and copy a wide range of public records and information that is in the possession of the numerous government and local agencies that conduct operations within the state. While there are some exceptions to the law, the public records that can be accessed under the law give citizens of Delaware a great level of insight as it relates to the manner in which their local government officials have been spending the tax dollars of said citizens, in an effort to promote both accountability and transparency.