With a commitment to transparency and engagement with interested Delawareans, including journalists whose work is essential to the realization of America's promise, the sponsors file this Act at the end of the 153rd General Assembly for purposes of soliciting feedback and estimating the potential impact on the State budget. On receipt of that feedback and estimations, the sponsors intend to consider changes to this Act’s language and file a similar or modified version of this Act in the 154th General Assembly.
Delaware's Freedom of Information Act ("FOIA") was enacted in 1976 because "[i]t is vital in a democratic society that public business be performed in an open and public manner so that the citizens [are] advised of the performance of public officials and of the decisions that are made by such officials in formulating and executing public policy." § 10001 of Title 29 of the Delaware Code (1976). FOIA has been amended numerous times since then to continue to meet its original purpose of furthering government accountability. This Act continues those efforts by making the following substantive changes to FOIA:
(1) Applying FOIA to “the public” generally, rather than just to citizens of this State. Delaware is 1 of 8 states that currently limits the application of their FOIA law to those who are citizens of their state. This change requires that all public bodies that are subject to the requirements of FOIA respond to requests for information from persons whether or not they are residents of Delaware.
(2) Removes the broad exemption in FOIA for records of the University of Delaware and Delaware State University and creates the following specific exemptions for some records of public educational institutions:
• Confidential letters or statements related to admission, employment, or honors.
• Proprietary information related to study or research.
• Personal fundraising strategies relating to and confidential financial and personal information about identifiable donors or prospective donors.
• Allowing anonymity for donors and prospective donors.
(3) Removes the blanket exemption for investigatory files compiled for civil or law-enforcement purposes and instead requires the public body to make a finding that one of the enumerated harms would result if the record was disclosed.
(4) Removes the provision that permits a public body to withhold the identity of a contributor of a charitable contribution to the public body. However, this exemption is maintained for public institutions of higher education.
(5) Allows periodic reports to be posted on a general website in lieu of sending directly to individuals and entities except for reports to the General Assembly.
(6) Requires a public body to respond to a FOIA request within 10 business days instead of the current 15 business days.
(7) Permits a public body to deny a FOIA request if the public body finds the request to be unreasonably broad, unduly burdensome, intended to disrupt the essential functions of the public body, or is abusive. If the public body makes such a finding, the public body must provide the requestor with a summary of the facts that are the basis for the denial. The public body’s denial is subject to review under § 10005 by the Attorney General through a petition or by a lawsuit in the Superior Court or Court of Chancery, as applicable.
(8) Allows a public body to charge fees for scanning hard copy records to fulfill a FOIA request.
(9) Allows a public body to charge administrative fees for all reviews, including the review and redaction of information exempt from FOIA. The review and redaction of information is often performed by non-attorney staff in conjunction with necessary review for exceptions and exclusions. Exceptions are made for resolving issues of law and requests made by news media and for scholarship and scientific research.
(10) Allows non-residents of this State to make a FOIA request, but allows public bodies to charge higher fees for responses to non-residents.
(11) Clarifies that a public body can go into executive session to discuss any individual’s qualifications to hold a job or pursue training, not just to discuss the qualifications of a citizen of this State.
(12) Removes a provision exempting certain public bodies within the General Assembly from FOIA’s open meeting requirements and requiring certain public bodies within the General Assembly to abide by FOIA’s open meeting requirements. Under the Court of Chancery’s ruling in News-Journal Co. v. Boulden, 1978 Del. Ch. LEXIS 536 (Del. Ch. 1978), a FOIA requirement to hold open meetings was held to not apply to the General Assembly because the requirement was adopted by a previous General Assembly and a previous General Assembly is constitutionally prohibited from controlling the manner in which a subsequent General Assembly exercises its lawmaking powers. While these requirements are not binding on the General Assembly, the House and Senate have, for the last 17 years, including the current General Assembly, adopted rules requiring the committee process to be open to the public.
(13) Clarifies, simplifies, and makes uniform the remedies available to the public when a public body fails to comply with FOIA obligations, as follows:
• Provides that Attorney General or Chief Deputy determinations are advisory and not appealable.
• Modifies the timeframes in which the public may file a FOIA petition with the Attorney General.
• Eliminates the need for the public to petition the Attorney General before initiating a lawsuit against an individual or entity that the Attorney General is obligated to represent.
• Gives the public 120 days to bring suit after a FOIA violation, except that when a petition is filed with the Attorney General, a petitioner may file a lawsuit the later of 120 days after the violation occurred or 30 days after issuance of the determination on the petition by the Attorney General.
• Provides the Superior Court with exclusive jurisdiction over all FOIA disputes, except that lawsuits involving claims for temporary, preliminary, or permanent injunctive relief when there is no adequate remedy at law must be brought in the Court of Chancery.
• Clarifies that monetary damages may not be awarded for FOIA violations and that an award of attorney fees be reasonable.
• Clarifies that the public may not file a petition with the Attorney General regarding a FOIA violation that is the subject of a pending lawsuit and that a pending petition is deemed withdrawn if the FOIA violation becomes the subject of a lawsuit.
• Ensures that the public has sufficient time to pursue judicial remedies after the issuance of a written determination by the Attorney General.
• Extends the standard time for the Attorney General or Chief Deputy to issue a written determination to 30 business days of receipt of a petition, instead of the current 20 calendar days.
This Act also makes technical corrections to conform FOIA to the standards of the Delaware Legislative Drafting Manual, including:
(1) Clarifying FOIA by adding definitions for terms that are currently undefined, including “executive session” and “political subdivision of this State”.
(2) Moving definitions and exemptions specific to the University of Delaware and Delaware State University that are under § 10002(l) of Title 29 to be within the general definitions and exemptions.
(3) Moving the list of records excluded from the definition of “public record” to its own Code section (§ 10002A of Title 29).
(4) Clarifying the executive session exemption for matters in which the name, competency, and abilities of an individual student is discussed by separating it from the exemption for personnel matters.
This Act requires a greater than majority vote for passage because § 1 of Article IX of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to amend a charter, either directly or indirectly, issued to a municipality or to a corporation for educational purposes sustained in whole or part by the State, including the University of Delaware and Delaware State University.

Statutes affected:
Original / Not Amended: 29.10001, 29.10002, 29.10003, 29.10004, 29.10005, 29.10006, 29.10007