SB 155

Abstract

This Act revises the Delaware Freedom of Information Act (FOIA) to address how public bodies may respond to FOIA requests that are unreasonable, disruptive, or abusive; requires all public bodies to post notice of meetings electronically; and clarifies and simplifies how a citizen may challenge a public body’s failure to comply with FOIA requirements. This Act does not change the definition of “public record." Specifically, this Act does all of the following: 1. It amends the examination and copying of public records provisions of FOIA to alleviate the significant time, resources, and financial burdens imposed on public bodies by FOIA requests that are unreasonable, disruptive, or abusive. This Act allows a public body to deny a request from a requestor whose intent is to disrupt the essential functions of the public body or abuse the process and allows a public body to charge administrative fees for all reviews, including the review and redaction of information exempt from FOIA. The review and redaction of information is often performed by non-attorney staff in conjunction with necessary review for exceptions and exclusions. 2. Allows a public body to post electronic notice of a meeting on a website maintained, or designated, by the public body. 3. It clarifies, simplifies, and makes uniform the remedies available to citizens when a public body fails to comply with FOIA obligations as follows: • Clarifies that Attorney General or Chief Deputy determinations are advisory and not appealable. • Clarifies the timeframes in which a citizen may file a FOIA petition with the Attorney General. • Eliminates the need for citizens to petition the Attorney General before initiating a lawsuit against an individual or entity that the Attorney General is obliged to represent because this appeal right was under utilized and of limited utility given the limited record produced in the petition process. • Gives citizens 120 days to bring suit after a FOIA violation, except in that when a petition is filed, a petitioner may file a lawsuit the later of 120 days after the violation occurred or 30 days after issuance of the determination on the petition. • Provides the Superior Court with exclusive jurisdiction over all FOIA disputes, except that lawsuits involving claims for temporary, preliminary, or permanent injunctive relief when there is no adequate remedy at law must be brought in the Court of Chancery. • Clarifies that monetary damages may not be awarded for FOIA violations and requires that an award of attorney fees be reasonable. • Clarifies that a citizen may not file a petition with the Attorney General regarding a FOIA violation that is the subject of a pending lawsuit and that a pending petition is deemed withdrawn if the FOIA violation becomes the subject of a lawsuit. • Imposes a deadline for citizens to submit petitions to the Attorney General to ensure that citizens have sufficient time to pursue judicial remedies after the issuance of a written determination. • Requires the Attorney General or Chief Deputy to issue a written determination within 30 business days of receiving a petition, unless there are exceptional circumstances. This Act requires a greater than majority vote for passage because § 1 of Article IX of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to amend a charter issued to a municipal or educational corporation and this Act may amend a municipal or educational charter. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.