Legislation introduced by Senate Majority Leader Bryan Townsend would make significant changes to Delaware’s Freedom of Information Act (FOIA). Although some of the proposed changes would expand access to government records, others could restrict access, especially if a government entity determined the requests were “abusive.”
“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,” the legislation began. “On receipt of the 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.”
Because the bill was introduced at the end of the General Assembly session, it will expire before the close of the two-year legislative cycle. As the Act states, Townsend hoped to introduce the legislation in order to obtain feedback from the public and other legislators in order to create a modified version of the act that would be introduced in the next General Assembly.
Delaware’s FOIA legislation was passed in 1976 and has been amended multiple times to continue to meet its purpose of furthering government accountability. Currently, only Delaware citizens are permitted to file FOIA requests and the legislation would change that to allow out-of-state requests, although government entities could charge higher fees for out-of-state FOIA submissions.
One of the biggest changes to FOIA would be removing the broad exemption for the University of Delaware and Delaware State University. For many years, the exemption granted to Delaware’s state universities has been questioned. In 2021, the Delaware Supreme Court ruled that the University of Delaware had a right to deny FOIA requests, citing a provision in the state’s FOIA legislation. The change proposed by Townsend would eliminate that exemption.
In addition, the changes would remove blanket exemptions for civil or law-enforcement purposes unless the governmental body could demonstrate that “enumerated harms” would result if the record was disclosed.” The identity of charitable donors to the public body would also be lifted except for public institutions of higher learning.
Government agencies would be able to post periodic reports on a general website in lieu fo sending requests directly to individuals and entities, except for the General Assembly. Public bodies would also be required to respond to a FOIA request within 10 business days rather than 15 days. This means that the public body must notify the requestor if their FOIA request will take longer than 10 days or must provide the information within 10 days.
Another notable change would allow governmental bodies to deny FOIA requests if they find them to be unreasonably broad, unduly burdensome or intended to disrupt the essential functions of the public body or is abusive. One criteria that could be used by the government agency is the number of FOIA requested filed by one individual within a certain timeframe. The agency would be required to provide the requestor with a summary of the facts that are the basis for the denial and that denial is subject to review under §10005 by the Attorney General through a petition or by a lawsuit filed in Superior Court or the Court of Chancery.
Fee changes are also part of the legislation, allowing government agencies to charge fees for scanning hard copy records and administrative fees for all reviews as well as redaction of information that is exempt from FOIA. Non-residents who file a FOIA request could also face higher fees.
Other changes include details on when a public body can go into executive session and adjustments to language in the current legislation.
If a modified version of the bill is presented in the next General Assembly, it would require a vote of two-thirds of the members both the House of Representatives and the Senate.
