Overview

The Delaware FOIA holds a public body or agency to be an “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. 29 Del. C. § 10002(c).” The state’s General Assembly is the exception to this however. Records relating to General Assembly are thoroughly exempted. Delaware has a response time of fifteen days unless given written notice the search will take longer. Only Delaware citizens are allowed through the language of the law to request. Luckily, plenty of agencies ignore this. If your request does get denied, there is no administrative appeals process here, only the Attorney General or the courts. If you manage to win your appeal you can expect attorney and records costs, but don’t expect the agency who violated FOIA to suffer any penalties or lasting punishment besides a scolding to release the documents withheld.

Exemptions in Delaware cover the standard privacy subjects and law enforcement investigative files covered in plenty of other sunshine laws. They are also very clearly written and listed, making it easy to find any potentially applicable exemptions and what their legal scope is. The exemptions dealing with any files created by members of the General Assembly, or records involving labor negotiations or collective bargaining. Specific courts are also exempted. Exempting broad categories of records can be problematic, and it is recommended to take a look at the more in depth AG FOIA manual located in the resources section.

The Law

• 15 Day response time
• General Assembly is exempt from FOIA, some courts may be trickier than others
• Law itself says only citizens of Delaware may request, agencies ignore this frequently *No administrative appeal process

Supplemental

Delaware record retention schedule

The Details

Can you submit a request if you’re not a resident?

Delaware is one a number of states that currently restricts some or all public records requests to its own citizens (A full list of states with such restrictions). MuckRock may use volunteer proxy filers to file requests in this state.

In this instance, the regulation barring non-citizen requesters is Delaware Attorney General Opinion 96-ib01.:

The Delaware FOIA holds a public body or agency to be an “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. 29 Del. C. § 10002(c).” The state’s General Assembly is the exception to this however. Records relating to General Assembly are thoroughly exempted. Delaware has a response time of fifteen days unless given written notice the search will take longer. Only Delaware citizens are allowed through the language of the law to request. Luckily, plenty of agencies ignore this. If your request does get denied, there is no administrative appeals process here, only the Attorney General or the courts. If you manage to win your appeal you can expect attorney and records costs, but don’t expect the agency who violated FOIA to suffer any penalties or lasting punishment besides a scolding to release the documents withheld.

To whom does this apply?

Executive?

Yes.

Legislative?

Yes.

Judicial?

Yes, to an extent. Because the law defines a public body as an agency or court created by the General Assembly and most courts in Delaware were created by the Constitution, it may be difficult to get some court records here. Family Court, Justice of the Peace Court and the Administrative Office of the Courts were created by the legislature, and are subject to the Delaware FOIA.

Who is exempted?

Legislative bodies are held accountable to the act, however the General Assembly and its committees and subcommittees are exempted.Some specific courts created by the constitution not the General Assembly, all agencies are covered. Personal notes have not typically been considered a public record in Delaware.

Is there a designated records custodian?

No. The Attorney General hears petitions regarding FOIA violations.

How long do they have to respond?

Agencies have fifteen days to respond with either an extension for more time, the requested documents, or an explanation for why the agency has not been able to fulfill the request including any relevant exemptions if the request has been denied.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

There is no general public records custodian. If the Attorney General or the courts decide your appeal is valid and the agency must disclose the documents they withheld, the extent of enforcement is an award for attorney fees and records cost. There is no penalty to an offending agency.

Fees?

Any “reasonable expense involved in the copying of records,” may be charged to a requester. In Delaware it is also up to the individual agency to write their own rules about charging for requests. If they plan to deviate from this, they must give written notice, Labor for search times may also be charged if the agency has a written policy.

Notable in Delaware is the mandate that any charges be estimated in full, to allow the requester to properly be able to decide if they wish to proceed with the request.

Are there fee waivers for media requests or those made in the public interest?

Yes.

Attorney’s fees - Can you win them?

Yes.

Exemptions and Appeals

What exemptions exist?

There are 16 specific exemptions in the Delaware FOIA. They are for the most part very similar to exemptions you will find in state public record laws across the country, and though not based off the federal FOIA, it shares many similarities.

Exemptions deal with privacy for students, medical patients, individuals financial information, criminal records, files for active or completed law enforcement investigations, trade secrets, agencies’ employee personnel records, or records that reveal the identity or address of concealed weapons permit carriers. Perhaps the most unique is an exemption barring any records relating to labor negotiations or collective bargaining from release.

There are also extensive exemptions relating to the Delaware General Assembly and specific types of investigative files deemed exempt. A complete list of Delaware FOIA exemptions is included in our resources section and it is recommended reading for anyone requesting or appealing in Delaware.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

How much time do you have to appeal?

You have 60 days to file with the AG or courts.

Can you appeal the courts?

Yes.

Resources

Organizations

Delaware Coalition for Open Government

Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

There are currently no experienced public records law attorneys that we know of in Delaware. Write to us at info@MuckRock.com if you know of any and want to help us out!

Successful appeals

News Stories on Public Records Laws in the State

Delaware Governor E-mail Scandal

Blogs and feeds primarily focused on public records in Delaware

Public Records Guide and Advice

DE AG FOIA manual

AG’s opinions

Newsletters

Let us know

Big FOIA wins

Have a public records success story? Let us know!