Freedom of Information Act (FOIA) Frequently Asked Questions
Q. What is the Freedom of Information Act (FOIA)?
Chapter 100 of Title 29 of the Delaware Code, the Freedom of Information Act, states that “it is vital in a democratic society that public business be performed in an open and public manner so that our citizens have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy”.
It further specifies that “all public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen”.
The Delaware Supreme Court emphasizes public policies underlying the Freedom of Information Act (FOIA) to be to “ensure governmental accountability, inform the electorate, and acknowledge that public entities, as instruments of government, should not have the power to decide what is good for the public to know.” The Attorney General of Delaware further states, “It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic.”
Q. Is all information covered by the Freedom of Information Act (FOIA)?
No, some information is exempt from release externally under FOIA. Some examples are:
- Personal, medical or pupil files
- Trade secrets and commercial or financial information
- Investigatory files
- Criminal files and criminal records
- Intelligence files
- Records specifically exempt by statute or common law
- Federal statutes and regulations
- State statutes and regulations
- Constitutional exemptions
- Common law privileges
- Charitable contributions
- Labor negotiations
- Pending or potential litigation
- Record of discussions held in executive session
- Persons with a permit to carry a concealed deadly weapon
- Public library users
- Department of Corrections records
- Investigative files maintained by the Violent Crimes Compensation Board
- Visual or audio recordings of postmortem examinations in the Office of Chief Medical Examiner
- Certain records that if released could jeopardize security of State facilities or of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual
Reference for this statue is the Delaware Freedom of Information Act Policy Manual published in 1997 by the Delaware Department of Justice.
Q. Where can I find more information about FOIA?
The full text of the Freedom of Information Act (FOIA) can be found in the Delaware Code (29 Del Code, Chapter 100).
Q. What is a public record?
FOIA defines a public record as “information of any kind, owned, made, used, retained, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced”.
FOIA grants exemption from the definition of “public record” to certain documents, and these records are not subject to public disclosure under FOIA. A complete list of exempted records is included in Title 29, Chapter 100, §10002(l) of the Delaware Code. Some of the commonly exempted documents include personnel records, investigatory files compiled for civil or criminal law-enforcement purposes, trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature, records involving labor negotiations or collective bargaining, etc.
Q. How and why does FOIA prohibit Council from responding to public comments at the meeting?
There is not a specific section of FOIA that expressly prohibits this. The guidance regarding matters raised during public comment and the fact that they should not be discussed comes from Attorney General (AG) opinions construing FOIA and ties into the FOIA requirement that meetings and what will be discussed at meetings be properly noticed.
These AG opinions essentially say that members of the public, exercising their First Amendment rights, can raise all sorts of issues and topics during a public comment portion of a meeting. If the issue or topic raised was not specifically noticed for public discussion on the meeting agenda, then there must be a compelling reason why discussion cannot wait until a later meeting to allow for proper notice under FOIA. This way, all interested parties to the issue or topic raised are informed about and given the opportunity to observe and/or participate in the discussion.
In the past, some public comments resulted in substantive discussions and question/answer sessions about hot topics. In the recent past, the hotel or other zoning issues have usually been the hot topics raised during public comment. The hotel is considered a substantial matter, as are most issues involving zoning.
The AG opinions does allow for discretion in responding to simple questions or making announcements regarding future events. Exercising this kind of discretion can be tricky. Accordingly, pursuant to advice from our attorney, the Council is taking a cautious approach by receiving comments or information presented during public comment and placing the issue or topic raised on a later agenda if the Town believes it warrants further discussion or action.
If you have questions or concerns regarding this information, please contact Teresa Tieman, Town Manager at 302-539-3011 ext. 203.
Q. Who can I contact for further information about FOIA requests?
The Town Clerk is responsible for coordinating all FOIA requests. In order for your request to be considered, we ask that you complete the FOIA Request form (PDF Format) and return it to our office.
FOIA Town Complaint, July/August 2018:
7-30-18 Petition Fenwick Island- Carmean
8-6-18 Petition Transmittal Letter- Fenwick Island Carmean 080618
8-9-18 Town Response to Carmean FOIA Complaint
8-11-18 FI First FOIA Response
8-24-18 Attorney General Opinion No. 18-IB40