Summary#
SB 355 would amend Delaware’s Freedom of Information Act in Title 29; it would not create a separate law. Its stated goal is to strengthen public access to government business and records. The bill is introduced and is not law; the supplied material does not include the full bill text or the parent Act, so current law cannot be fully checked.
- Public bodies would generally have to respond to FOIA requests within 10 business days, down from the 15 business days shown in the bill’s marked-up text. The bill also lists grounds for denying requests it describes as unreasonably broad, unduly burdensome, intended to disrupt government functions, or abusive.
- Public bodies would have to accept online requests, provide electronic records in their native format when requested if feasible, and use optical character recognition to make certain paper records searchable when requested, subject to listed exceptions.
- Public bodies would have to post certain records and information online, including some records requested repeatedly and the name of the person making a request. Contact information would be redacted.
- The bill would set out new or revised exemptions from disclosure, including exemptions for some legislative communications, university research and donor information, and confidential recommendation letters. It would also set conditions for withholding law-enforcement investigative files.
- The bill would define a qualified executive privilege for the Governor and change who must make the case for or against withholding records under that privilege.
- Public bodies could charge nonresidents higher fees under a published fee schedule, up to 150% of the cost of fulfilling the request.
What it means for you#
- People requesting records: You could request records online and, for electronic records, ask for the original file format. In some cases, you could ask for a searchable electronic copy of paper records. These requirements have exceptions, including when providing a format is not feasible or would expose information that may be withheld.
- People whose records or communications are requested: The bill adds or changes exemptions. For example, some communications involving legislators or legislative employees would be exempt. Some records about university research and donors would also be exempt, while the bill preserves access to certain donation and research-related information.
- People making requests: A public body could deny a request on specified grounds such as being unduly burdensome or abusive. The bill requires specific facts to support some of these grounds. A public body would also have to publish the requester’s name with certain request information.
- Public bodies: They would have to maintain request-tracking information, accept online requests, post specified material, and meet the shorter response deadline. The bill does not set out a new front-line service for requesters.
- Governor: The bill would let the Governor claim a qualified privilege over certain communications and materials. If the Governor makes an initial case for the privilege, the requester would have to show why the need for disclosure outweighs the Governor’s interest in withholding it.
Money#
No publicly available information on estimated implementation costs.
- Public bodies would have to handle new website, record-format, and tracking duties. The bill gives no staffing or cost estimate.
- The bill would allow higher fees for nonresidents only if a public body adopts a fee schedule, and those fees could not exceed 150% of the cost of fulfilling the request.
- The supplied text starts a rule barring administrative fees for some news-media and educational or research requesters when stated conditions are met, but cuts off before all conditions are shown.
What is unclear#
- The supplied bill text ends partway through the fee rules, so the complete proposed fee changes cannot be assessed.
- The parent Act is not supplied. The bill text shows some existing wording being changed, but the full current law and the effect of every amendment could not be verified.
- The bill does not provide an implementation date or a cost estimate.
- It is unclear how public bodies would apply terms such as “unreasonably burdensome” and “abusive” in disputed cases, beyond the examples and factors in the bill.
- The bill sets out website and tracking duties but does not explain how those duties would be funded or checked.
Case for#
- A 10-business-day deadline and clearer rules for explaining some denials could make request handling faster and more accountable.
- Online requests, searchable copies, and native electronic files could make records easier to find and use.
- Posting records that are requested repeatedly could reduce the need for people to file the same requests.
- Requiring a public body to explain why a law-enforcement-file exemption applies could make that exemption more specific than a blanket denial.
Case against#
- New exemptions for legislative communications and some university records could keep information from the public, even when the records relate to government work.
- The bill allows denials for broadness, burden, disruption, or abuse. Some of these terms may be hard to apply consistently.
- Publishing requesters’ names could discourage some people from seeking records. The bill would redact contact information, but not names.
- The Governor’s privilege rule would shift the burden to a requester after the Governor makes an initial case, which could make it harder to challenge withholding.