Understanding FOIA

The Freedom of Information Act, commonly known as FOIA, is designed to promote transparency in government by giving citizens access to public records. At the federal level, FOIA was signed into law in 1966 and applies to agencies within the executive branch of the United States government. Every state, including Delaware, also maintains its own public records laws governing access to state and local government documents.

The purpose of FOIA laws is to ensure public oversight of government activity, taxpayer spending, and official decision-making. In general, FOIA applies to governmental bodies such as municipal governments, county offices, school districts, police departments, state agencies, and federal departments. In some cases, boards or commissions created directly by government action may also fall under public records requirements.

Under the federal Freedom of Information Act, agencies are generally required to respond to requests within 20 business days. However, in Delaware, public bodies are required to respond to FOIA requests “as soon as possible,” but no later than 15 business days after receiving the request. The agency must either provide the records, deny the request, or explain why additional time is needed due to legal review, archived records, or unusually large requests.

Delaware law also requires agencies to provide good faith estimates if additional time will be necessary to complete the request. Public bodies are permitted to charge reasonable fees for copying, administrative labor, electronic retrieval, and document production. Under Delaware law, the first 20 standard black-and-white pages are generally free, with additional pages subject to statutory copy fees.

FOIA laws also permit agencies nationwide to charge reasonable fees associated with fulfilling requests. These charges may include copying expenses, electronic reproduction, staff time for extensive searches, or mailing costs. However, fees are generally intended to reflect the actual cost of producing records rather than creating barriers to public access. In some situations, journalists, educational researchers, or individuals requesting records in the public interest may qualify for reduced or waived fees.

One of the most misunderstood aspects of FOIA involves private non-profit organizations. Many people assume that because a non-profit serves the public, receives grants, or works closely with government agencies, it must automatically comply with public records laws. In most cases, that assumption is incorrect.

Private non-profit organizations are generally not subject to FOIA simply because they receive donations, grants, sponsorships, or public support. Unless a non-profit is legally defined as a governmental body, created directly by government action, or exercising governmental authority, it remains a private entity rather than a public agency.

This distinction is particularly important when non-profits enter into partnerships or cooperative agreements with local governments. Many organizations operate under Memorandums of Understanding, commonly referred to as MOUs, with municipalities, tourism offices, parks departments, school districts, or state agencies. An MOU is simply a formal agreement outlining how two parties will cooperate on a program, service, or event.

In Milford, there are several organizations that operate under an MOU with the city, including the Milford Public Library, the Milford Museum, the Carlisle Fire Company and Downtown Milford Inc. All of these organizations, in exchange for the MOU, receive grant funding from the city to carry out the details outlined in the MOU.

Legal experts generally agree that an MOU alone does not transform a non-profit into a government entity subject to FOIA laws. Courts often examine factors such as who controls the organization, how its board is selected, whether it exercises governmental authority, and whether it maintains independent financial and operational control. A non-profit that governs itself independently, raises its own funds, manages its own staffing, and operates under a private board structure typically remains outside the scope of FOIA even when partnering with government agencies.

For example, Downtown Milford Inc. frequently collaborates with the city on tourism initiatives, arts programming and festivals while the Milford Museum collaborates on historic preservation and the library on educational programs as well as community events. Those relationships may involve grant funding, shared facilities, or cooperative agreements, but the organizations themselves still function as independent private entities. All of the organizations are required to make annual or bi-annual reports to council providing details on how the funds granted by the city were used by the organization. These presentations are available online for public viewing.

However, all of these organizations have their own board of directors, raise funds outside of grants given by the city and maintain independent operational management outside of city control. Staffing, office location and business decisions are not made with approval of the city, but by the independent board of directors elected based on bylaws.

Because non-profits are private organizations, they are generally not legally required to disclose detailed internal financial information in response to FOIA requests. This includes operating budgets, donor lists, fundraising records, grant applications, strategic plans, sponsorship agreements, and detailed internal financial reports beyond what is already required under federal tax law.

Supporters of non-profit privacy protections argue there are several important reasons why this information should remain confidential. Donor privacy remains one of the largest concerns. Many individuals and businesses contribute to charitable organizations with the understanding that their identities and giving histories will not become public records. Releasing that information could discourage charitable giving and expose donors to unwanted solicitation, harassment, or political pressure.

Non-profits also compete for limited grant funding, sponsorships, and charitable contributions. Public disclosure of internal budgets, fundraising strategies, vendor relationships, or strategic planning documents could place organizations at a competitive disadvantage when seeking grants or community support. In some situations, releasing detailed financial information could also create security risks or expose organizations to fraud and identity theft concerns involving donors, beneficiaries, or financial accounts.

Advocates for maintaining these protections also note that non-profits already operate under substantial oversight and accountability requirements. Most tax-exempt organizations are required to file annual IRS Form 990 reports, which provide broad financial disclosures including executive compensation, mission statements, and overall revenue and expenditures. The Form 990 for charitable organizations are discoverable on the Internal Revenue Service website and some actually provide a link to the form on their websites.

In addition, organizations also undergo independent audits, board review processes, grant compliance monitoring, and charity registration reporting. Board members also view financial records monthly, and approval of those reports is included in their meeting minutes.

Public transparency advocates continue to debate where the line should be drawn between government accountability and private organizational privacy. However, current FOIA laws were intentionally designed to apply primarily to governmental agencies rather than private charitable institutions. Even when non-profits work alongside government entities or enter into MOUs with municipalities, they generally retain their status as independent private organizations not subject to broad public records disclosure requirements.

Understanding that distinction helps clarify both the public’s right to access government records and the legal protections afforded to private non-profit organizations operating within the community.