CHAPTER 191

FORMERLY

HOUSE BILL NO. 246

AS AMENDED BY HOUSE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 100, TITLE 29 OF THE DELAWARE CODE RELATING TO FREEDOM OF INFORMATION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend §10001, Chapter 100, Title 29, 'Delaware Code by striking existing §10001 in its entirety and substituting in licu thereof the following:

§10001. Declaration of Policy

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 madc 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. Toward these ends, and to further the accountability of government to the citizens of this State, this chapter is adopted, and shall be construed."

Section 2. Amend §10002 (a), Chapter 100. Title 29, Dclawarc Code by striking existing §10002 (a) in its cntircty and substituting in lieu thereof the following:

"(a) 'Public Body' means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive, or legislative body of the State,or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and COMMittee, subcommittee, legislative committee, association, group, panel, council, or any other entity or body established by an Act of the Gcncral Assembly of the State, or established by any body established by the Gcncral Assembly of the State, or appointed by any body or public official of the State, or otherwise empowered by any State governmental entity, which, (l) is supported in whole or in part by any public funds, or (2) expends or disburses any public funds, Including grants, gifts, or other similar disbursals and distributions, or (3) is impliedly or specifically chargcd by any other public official, body, or agency to advise or to make reports, Investigations, or recommendations. Public Body shall not include the Gcncral Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee, or temporary committee."

Scction 3. Amend §10002 (d), Chapter 100, Title 29 of the Delaware Code by striking the first scntcncc In its entirety and substituting in lieu thereof the following:

"'Public Record' is information of any kind, owned, made, used, retained, received, 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."

Section 4. Amend §10002 (d), Chapter 100, Title 29 of the Delaware Code by striking subsection (10) in its cntircty and substituting in lieu thereof the following:

"(10) Subject to the provisions of Subsection (f) of Section 10004 of this Title with respect to release of minutes of executive sessions, any record of discussions held In executive session pursuant of Subsections (b) and (e) of Section 10004."

Section S. Amend §10002, Chapter 100, Title 29 of the Delaware Code by striking subsection (I) In its cntircty and substituting in lieu thereof the following:

"(f) 'Agenda' shall include but is not limited to a general statcmcnt of the major issues expected to be discussed at a public meeting, as well as a statement of intent to hold an executive session and the specific ground or grounds therefore under subsection (b) of Section 10004 of this Title."

Section 6. Amend §10002 (g), Chapter 100, Title 29 of the Delaware Code by striking the phrase "Farmers' Bank of the State of Delaware or the" in its entirety u it appears.

Section 7. Amend §I0004 (b), Chapter 100, Title 29 of the Delaware Code by striking the first sentence up to the colon in its entirety and substituting in lieu thereof the following:

"A public body may call for an executive session dosed to the public pursuant to subsection (0)

and (e) of this section. but only for the following purposes".

Section B. Amend §10004 (b). Chapter 100, Title 29 of the Delaware Code by striking subsection (4) in its entirety and substituting in lieu thereof the following:

"(4) Strategy sessions. including those involving legal advice or opinion from an attorney at law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body."

Section 9. Amend §10004 (b), Chapter 100, Title 29 of the Delaware Code by striking subsections (9), (10). (I (12). and (13) in their entirety and substituting in lieu thereof the following:

"(9) Personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open."

Section 10. Amend §10004, Chapter 100. Title 29 of the Delaware Code by striking Subsection (c) in its entirety and substituting in lieu thereof the following:

"(c) 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 vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this Section. Executive sessions may be held only for the discussion of public business, and all voting on public business must take place at a public meeting and the results of the vote made public."

Section 11. Amend §10004 (c). Chapter 100, Title 29 of the Delaware Code by striking subsections (2), (3), and (5) in their entirety and substituting respectively in lieu thereof the following:

"(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least seven 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 including executive sessions or the deletion of items including executive sessions which arise at the time of the public body's meeting.

(3) All public bodies shall give public notice of the type set forth In paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible. but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less that seven days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (1) of this subsection could not be given.

(5) 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 six hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda."

Section 12. Amend §10004, Chapter 100, Title 29 of the Delaware Code by striking subsection (f) In its entirety and substituting in lieu thereof the following:

"(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall Include a record of those members present and a record, by Individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure to long as public disclosure would defeat the lawful purpose for the executive session, but no longer."

Section 13. Amend §10005, Chapter 100, Title 29, Delaware Code by striking the section in its entirety and substituting in lieu thereof the following:

"Section 10005. Enforcement

(a) Any action taken at a meeting in violation of this chapter may be voidable by the Court of Chancery. Any citizen may challenge the validity under this chapter of any action of a public body by filing suit within 60 days of the citizen's learning of such action but in no event later than 6 months after the date of the action.

(b) Any citizen denied access to public records as provided in this chapter may bring snit within 60 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 plaintiff resides.

(c) In any action brought under this section, the burden of proof shall be on the custodian of records to justify the denial of access to records, and shall be on the public body to justify a decision to meet In executive session or any failure to comply with the provision of this chapter.

(d) Remedies permitted by this section include an injunction, a declaratory Judgment, writ of mandamus and/or other appropriate relief."

Approved July 19, 1985.