CHAPTER 641

SENATE SUBSTITUTE NO. 2

FOR SENATE BILL NO. 256

AS AMENDED BY

SENATE AMENDMENT NOS. 1, 2 & 5 AND

HOUSE AMENDMENT NOS. 1, 3, 5 & 6

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE BY ADDING A NEW PART RELATING TO FREEDOM OF INFORMATION AND REQUIRING THAT MEETINGS OF PUBLIC BODIES AND RECORDS OF PUBLIC BODIES BE OPEN TO PERSONAL INSPECTION BY ANY CITIZEN OF THE STATE OF DELAWARE.

Be it enacted by the General Assembly of the State of Delaware:

Section 1. Amend Title 29, Delaware Code, by adding thereto a new Part X to read as follows:

"PART X. PUBLIC RECORDS AND MEETINGS CHAPTER 100. FREEDOM OF INFORMATION ACT

§10001. Declaration of Policy.

It is vital in a democratic society that public business be performed in an open and public manner so that the citizens shall be advised of the performance of public officials and of the decisions that are made by such officials in formulating and executing public policy. Toward this end, this Act is adopted, and shall be construed.

§10002. Definitions.

`Public body' means any regulatory, administrative, advisory, executive or legislative body of the State or any political subdivision of the State including, but not limited to, any board, bureau, commission, department, agency, committee, counsel, legislative committee, association, or any other entity established by an act of the General Assembly of the State of Delaware, which (1) is supported in whole or in part by public funds; or (2) expends or disburses public funds; or (3) is specifically charged by any other public body to advise or make recommendations.

`Public business' means any matter over which the public body has supervision, control, jurisdiction, or advisory power.

`Public funds' are those funds derived from the State or any poltical subdivision of the State, but not including grants-in-aid.

`Public record' is written or recorded information made or received by a public body relating to public business. For purposes of this Act, the following records shall not be deemed public:

(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or Federal Law as it relates to personal privacy.

(2) Trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature.

(3) Investigatory files compiled for civil or criminal law enforcement purposes including pending investigative files, pre-trial and presentence investigations; child custody and adoption files where there is no criminal complaint at issue.

(4) Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of his personal criminal record. All other criminal records

and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aides or any other information of a privileged and confidential nature.

(5) Intelligence files compiled for law enforcement purposes, the disclosure of which could constitute an endangerment to the local, State or national welfare and security.

(6) Any records specifically exempted from public disclosure by statute or common law.

(7) Any records which disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor.

(8) Any records involving labor negotiations or collective bargaining.

(9) Any records pertaining to pending or potential litigation which are not records of any court.

(10) Any record of discussions allowed by §10004 (2) to be held in executive session.

`Meeting' means the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business.

`Agenda' shall include but is not limited to a general statement of the major issues expected to be discussed at a public meeting.

`Public body', 'Public record' and 'Meeting' shall not include activities of the Farmers Bank of the State of Delaware or the University of Delaware, except that the Board of Trustees of the University shall be a 'public body', and University documents relating to the expenditure of public funds shall be 'public records', and each meeting of the full Board of Trustees shall be a meeting.

§ 10003. Examination and copying of public records.

All public records shall be open to inspection and copying by any citizen of the State of Delaware 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. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.

It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.

§ 10004. Open Meetings.

(1) Every meeting of all public bodies shall be open to the public except those closed pursuant to paragraphs (2), (3), (4), and (7) of this section.

(2) A public body at any meeting may call for an executive session closed to the public pursuant to subparagraph (3) below for any of the following purposes:

(a) Discussion of individual citizen's qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open.

(b) Preliminary discussions on site acquisitons for any publicly funded capital improvements.

(c) Activities of any law enforcement agency in its efforts to collect information leading to criminal apprehension.

(d) Strategy sessions with respect to collective bargaining, pending or potential litigation, when an open meeting would have effect on the bargaining or litigation position of the public body.

(e) Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor.

(f) Discussion of the content of documents, excluded from the definition of 'public record' in §10002, where such discussion may disclose the contents of such documents.

(g) The hearing of student disciplinary cases unless the student requests a public hearing.

(h) The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing.

() Personnel matters in which the names, competency and abilities of individual employees or students are discussed.

(a) Training and orientation sessions conducted to assist members of the public body in the fulfillment of their responsibilities.

(b) Discussion of potential or actual emergencies related to preservation of the public peace, health and safety.

(I) Where the public body has requested an attorney at law to render his legal advice or opinion concerning an issue or matter under discussion by the public body and where it has not yet taken a public stand or reached a conclusion in the matter.

(m) Preliminary discussions resulting from tentative information relating to the management of the public schools in the following areas: school attendance zones; personnel needs; and fiscal requirements.

(3) A public body may hold an executive session closed to the public upon affirmative vote of a majority of members present at a meeting of the public body. The purpose for such executive session shall be announced ahead of time and shall be limited to the purposes listed in paragraph (2) above. Executive sessions may be held only for the discussion of public business, and all voting on public business must be made at a public meeting and the results of the vote made public, unless disclosure of the existence or results of the vote would disclose information properly the subject of an executive session pursuant to subparagraph (2) above.

(4) This section shall not prohibit the removal of any person from a public meeting who is willfully and seriously disruptive of the conduct of such meeting.

(5) Notice of meetings.

(a) This paragraph concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace health or safety, or to the General Assembly.

(b) All public bodies shall give public notice of their regular meetings at least seven (7) days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items or the deletion of items at the time of the public body's meeting.

(c) All public bodies shall give public notice of the type set forth in subsection (b) above of any special or rescheduled meeting no later than 24 hours before such meeting.

(d) Public notice required by this section shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available.

(e) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting.

(6) Minutes

Each public body shall make available for public inspection and copying a public record minutes of all regular, special and emergency meetings. Such minutes shall include a record of those members present and a record, by individual members, of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to the provisions of this section may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer.

(7) This section shall not apply to the proceedings of (a) grand juries, (b) petit juries, (c) special juries, (d) the deliberations of any court, (e) the board of Pardons and Parole and (f) public bodies having only one member.

§ 10005. Enforcement.

(1) Any action taken at a meeting in violation of this section may be voidable by the Court of Chancery. Any citizen may challenge the validity under this Act of any action of a public body by filing suit within thirty days of the citizen's learning of such action but in no event later

than six months after the date of the action. Any citizen denied access to public records as provided in this Act may bring suit within ten days of such denial. Venue in such cases where access to public records is denied shall be placed in a court of competent jurisdiction for the county or city in which the public body ordinarily meets or in which the plantiff resides. Remedies permitted by this section include a declaratory judgment, writ of mandamus and other appropriate relief."

Section 2. If any provisions of this Act or the application thereof to any person or circumstances is held invalid such invalidity shall not affect other provisions or applications of this Act without the invalid provisions or application, and to this end the provisions of this Act are declared to be severable.

Section 3. If the provisions of this Act conflict with any other law or regulation passed by the State of any political subdivision thereof, the provisions of this Act shall control.

Section 4. §5109, Part V, Title 29, Delaware Code, is hereby amended by repealing §5109 in its entirety.

Section 5. This Act shall become effective on January 1, 1977.

Approved January 1, 1977