Delaware Freedom of Information Act

What is the Delaware Freedom of Information Act?

The Freedom of Information Act is a piece of legislation in place that guarantees full or partial access to the public information and documents of public agencies. The FOIA was initially enacted by the federal government in 1967 and applied to federal agencies. Subsequently, state governments created these types of laws for state and local agencies to follow suit. Anyone, regardless of their citizenship, can request records covered under the Freedom of Information Act (FOIA) from the agency in the custody of the records.

The Delaware Freedom of Information Act (FOIA) is legislation that ensures easy access by the public to the records and meetings of government agencies in the state. Enacted as a series of laws by the Delaware Legislature in 1977, the Delaware FOIA was introduced to ensure the transparency of government agency endeavors. It afforded citizens of the state the chance to monitor the discharge of the duties of public officials through access to public records and meetings of public agencies.

The Freedom of Information Act defined public records as information or documents owned, produced, received, or otherwise compiled or collected by any public agency in the state. The information or documents in question must relate in some way to public business, public purposes, or be in the public interest. There have been several amendments to the original law since 1977 to make it more representative of the current times.

What is Covered Under the Delaware Freedom of Information Act?

The Delaware Freedom of Information Act (FOIA) covers all public records created from governmental bodies and branches of the Delaware State government. A government body, under the Act, is any state agency or subdivision or any agency or body created or empowered by a state agency. The body must receive or disperse public funds as part of its functions or operate in an advisory capacity to a public agency. Public records include all information and records compiled or collected by any public agency that relates to the interests of the general public.

The Delaware FOIA also includes the Delaware Open Meetings Law. This law states that all gatherings of quorums of members of any public agencies or bodies with the intention of discussing public business are considered public meetings. All such meetings should be open and accessible by members of the general public without restriction and adequate notice of meetings must be given. The meeting must be held in a public place that is situated within the geographical jurisdiction of the agency holding the meeting. Noted exceptions to public meetings, according to the Act, include:

  • Criminal investigations
  • Student disciplinary hearings
  • Collective bargaining and negotiation sessions
  • Employee evaluations
  • Pending litigation negotiations
  • Attorney-client discussions and meetings
  • Real estate transactions

What Records are Exempt from the Freedom of Information Act in Delaware?

There are specific records and documents that are granted exemptions from the provisions of the Delaware Freedom of Information Act. Exemptions to the Delaware FOIA were established to restrict access to specific types of information that may be considered private or sensitive. This includes information that may constitute a security threat or risk to individuals if released. Records exempted from disclosure in the Delaware FOIA include:

  • Personnel, medical, or student files, the disclosure of which would violate the privacy of the owner of the information.
  • Trade secrets
  • On-going criminal investigations
  • Adoption and child custody information
  • Any criminal records that are considered personal and private
  • Criminal intelligence information that may constitute a security risk
  • Records specifically exempted from public disclosure by a statute or common law
  • Anonymous charitable contributions to the public
  • Labor negotiations records
  • The minutes of closed executive meetings. Public meetings may be closed by a vote of the public body for specific reasons, such as;
    • The subject of the meeting was hiring discussions
    • Disciplinary hearings
    • Litigation strategy
    • Criminal investigations
    • Preliminary discussions of publicly funded projects
  • Records of registered concealed weapons permits
  • Public Library records
  • Department of Correction records when sought by an inmate in that department
  • Photos and videos of autopsies
  • Emails of the members of the Delaware General Assembly and their staff
  • Any records that may constitute a security risk to either individuals or infrastructure
  • Military service discharge records

How Do I File a Delaware Freedom of Information Act Request?

The Delaware Freedom of Information Act (FOIA) dictates that record requests be submitted in writing or using the FOIA Request Form issued by the Attorney General’s Office. Requests or petitions for records must be descriptive enough to facilitate locating the records with reasonable efforts. A statement of purpose is not required to obtain records under the Delaware FOIA, nor does it restrict the uses of the records.

Record requests under the FOIA in Delaware must be submitted directly to the agencies in the custody of the specific records. Records can be requested, under the FOIA, online, by mail, e-mail, fax, or in person at the offices of the custodian agencies. A FOIA coordinator is attached to every public agency in the state, who is responsible for responding to requests for information under the FOIA.

The Delaware General Assembly receives requests for information under the FOIA and allows public access to meetings to observe and monitor the performance of elected officials. FOIA requests for information from the Delaware General Assembly can be submitted online, by email, fax, or regular mail to:

Mark Cutrona
FOIA Coordinator
Division of Research
Legislative Hall
411 Legislative Avenue
Dover, DE 19901
Fax: (302) 739-7553

Requests for records under the FOIA from the Delaware Department of State can be submitted using the Online FOIA Request Form. Alternatively, FOIA requests to the Delaware Department of State can be submitted by email, faxed to (302) 739-8436, or mailed to:

Tamara Stock
FOIA Coordinator
Delaware Public Archives
121 Martin Luther King Jr. Boulevard North
Dover, DE 19901

In-person submissions should be made to the same address.

FOIA requests can be sent directly to the custodian agencies online or by submitting the printable FOIA request forms. Consult the State Agency Directory for the addresses of state agencies in Delaware.

What is the Cost of a Freedom of Information Act Request in Delaware?

The Delaware Freedom of Information Act (FOIA) permits public agencies to charge “reasonable fees” for the time spent in identifying and copying the requested records. Governor Markell issued Executive Order 31 in 2011 which, amongst other things, limited the fees payable for copies of public records in the state. The costs for copies of public records in Delaware depends on certain criteria; these are:

  • Standard-sized black & white copies - 1st 20 pages free, then 10 cents per page thereafter.
  • Large-sized black & white copies/printouts -
    • 18” x 22” - $2 per page.
    • 24” x 36” - $3 per page.
    • Documents larger than 24” x 36” - $1 per square foot.
  • Color copies/printouts -
    • Additional $1 per page charge for standard-sized copies.
    • Additional $1.50 per page charge for large-sized copies.
  • Microfilm or Microfiche - 1st 20 pages free, then 15 cents per page thereafter.
  • Electronically generated records - Charges for copies of such records will be calculated by the material cost involved in producing the copies and administrative costs.
  • Administrative fees - These fees shall be charged for public record requests that require more than one hour for the staff of the agency to process. The agency shall provide a written estimate of the costs for fulfilling public record requests that incur administrative costs to the requester. The requester can decide to proceed, modify, or cancel their request and should communicate the decision to the agency.

There are added charges for the certifying of copies of the records and the requester might be required to pay the fees before receiving the record copies.

How Long Does it Take to Respond to a Freedom of Information Act Request in Delaware?

The Delaware Freedom of Information Act (FOIA) requires that public agencies respond “as soon as possible” to FOIA requests from citizens in the state. However, responses to FOIA requests may not exceed 15 business days from the day the agency received the request. A response to a FOIA request can either be by:

  • Granting access to the records
  • Denying access to parts or all of the records
  • Informing the requester that additional time is needed to process the request and providing the reasons for this.

According to the language of the law, FOIA requests in Delaware are restricted to residents of the state, but this is not always strictly adhered to. Citizens who believe they were unlawfully denied access to public records may file an appeal with the courts or Attorney General within 60 days of the denial. Also, citizens may petition the Attorney General to ascertain if any violations of the FOIA had happened or may happen. This includes if access to a public meeting was denied or there was no notice of the date and venue of a public meeting provided to citizens. The Office of the Attorney General is required to respond to such petitions, within 20 days, with a written determination on the issue. A copy of the determination must also be sent to the FOIA coordinator of the agency in question.