Does Delaware's public records law (FOIA) apply to the state courts?

Official title

07-IB02 RE: Application Of The Freedom Of Information Act To The Courts

Plain-English summary

A state senator asked the Attorney General's office to settle a basic structural question: does Delaware's public records law reach the courts themselves? The opinion answers no. FOIA only regulates a "public body," and that term is defined to cover executive and legislative entities, boards, commissions, and similar bodies performing government administrative or lawmaking functions. Resolving legal disputes through judicial precedent, the AG reasoned, is neither an executive nor a legislative function, so the judiciary simply isn't the kind of entity FOIA was built to reach in the first place.

The opinion backs this up by noting what FOIA's text doesn't say: nowhere in the statute's careful, lengthy list of covered bodies does the word "court" or "judicial branch" appear, and under a basic rule of legal interpretation, leaving something out of a detailed list is usually a sign the legislature meant to leave it out. The two places FOIA does mention courts actually reinforce the point: one exemption preserves open court records from being swept up in a different exemption, and another simply confirms that FOIA doesn't override existing court rules about grand juries, petit juries, or judicial deliberations. Legislative history from when FOIA was first enacted in 1976 backs this reading, showing lawmakers added those references specifically to reassure the press that court records already open under court rules would stay that way, not to bring the judiciary under FOIA's umbrella. The upshot: Delaware's courts, like courts in other states with similarly worded public records laws, control access to their own records and proceedings through their own rules, as a matter of respecting judicial independence as a separate, co-equal branch of government.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can someone use Delaware's FOIA to request records from the Delaware courts?

No, according to this opinion. The AG found the judiciary is not a "public body" under FOIA's definition, which covers only executive and legislative entities, so court records and proceedings are governed by the courts' own rules instead.

Why doesn't Delaware's public records law apply to the judicial branch?

Under this opinion, FOIA's definition of "public body" lists many kinds of executive and legislative entities but never mentions courts or the judicial branch, which the AG read as a deliberate choice to respect the judiciary's independence as a separate, co-equal branch of government.

Does an office created by the Delaware Supreme Court, like the Board of Bar Examiners, have to comply with FOIA?

No, according to this opinion's supporting footnote. The AG had previously determined that a board established by the Delaware Supreme Court under its inherent authority to regulate the practice of law is an arm of the judiciary, not a public body subject to FOIA.

Background and statutory framework

FOIA defines a "public body" as any "regulatory, administrative, advisory, executive, appointive or legislative body of the State" that is publicly funded or charged with advising a government entity, 29 Del. C. § 10002(c). The Delaware Supreme Court's Delaware Solid Waste Authority v. The News-Journal Co. explained that this definition has two elements: an entity must first fall within the executive-or-legislative category, and second, be publicly funded, disburse public funds, or be charged with advising another public body. The AG's own prior opinions had already concluded, relying on that framework, that the "judicial role of resolving disputes through the application of judicial precedent" is neither executive nor legislative, so the judiciary and its administrative arm fall outside FOIA's reach altogether.

The opinion reinforced that conclusion using the interpretive canon expressio unius est exclusio alterius, "the expression of one thing is the exclusion of another," as applied by the Delaware Supreme Court in Priest v. State: because FOIA's detailed definition of "public body" never mentions courts, the General Assembly's silence is itself meaningful. The Illinois Appellate Court reached the identical conclusion construing a nearly identical definition in Copley Press, Inc. v. Administrative Office of the Courts, holding that a legislature's specific listing of the executive and legislative branches, without the judiciary, evidences an intent to exclude it. The AG found FOIA's only two references to courts, an exemption preserving already-open court records and a provision confirming FOIA doesn't override rules governing jury proceedings and judicial deliberations, actually reinforce rather than undercut that reading, consistent with the New York Supreme Court's recognition in Harvey v. Hynes that courts retain inherent authority over their own records as a matter of respecting judicial independence.

Citations

• 29 Del. C. § 10002(c) (defining "public body" as an executive or legislative entity of the State)
• 29 Del. C. § 10002(g)(9) (pending-litigation exemption, excluding records of any court)
• 29 Del. C. § 10004(h) (open meeting requirements do not apply to juries or court deliberations)
• Delaware Solid Waste Authority v. The News-Journal Co., 480 A.2d 628, 632 (Del. 1984) (Delaware state court; the two-part test for what counts as a "public body" under FOIA)
• Priest v. State, 879 A.2d 575, 584 (Del. 2005) (Delaware state court; applying the interpretive canon that expressing one thing excludes another)
• Copley Press, Inc. v. Administrative Office of the Courts, 648 N.E.2d 324 (Ill. App.) (Illinois state court; a public records law that lists the executive and legislative branches without the judiciary excludes the judiciary)
• Harvey v. Hynes, 665 N.Y.S.2d 1000, 1005 (Sup. 1997) (New York state court; courts have inherent authority over their own records, reflecting judicial independence)
• In re Reardon, 378 A.2d 614, 615 n.1 (Del. 1977) (Delaware state court; the Board of Bar Examiners is an arm of the judiciary under the Supreme Court's inherent authority to regulate the practice of law)

Source

• Landing page: https://attorneygeneral.delaware.gov/2007/02/01/07-ib02-re-application-of-the-freedom-of-information-act-to-the-courts/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 07-IB02 (Del.A.G.), 2007 WL 756515

Office of the Attorney General

State of Delaware

Opinion No. 07 - IB02

February 1, 2007

RE: Application Of The Freedom Of Information Act To The Courts

*1 The Honorable Karen E. Peterson

Legislative Hall

P.O. Box 1401

Dover, DE 19903

Dear Senator Peterson:

You have asked for the opinion of our Office whether the public record requirements of the Delaware Freedom of Information Act, 29 Del. C. Chapter 100 ("FOIA"), apply to the courts of the State of Delaware.

FOIA only applies to a "public body." The courts are not a "public body" as defined by FOIA because they do not perform an executive or legislative function of the State or a political subdivision. The statutory language and legislative history of FOIA evidence the General Assembly's intent to respect the inherent independent authority of the judiciary, as a co-equal branch of government, to control access to court records and proceedings.

LEGAL AUTHORITY

FOIA defines a "public body" as:

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 General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, …

which (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, … or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.

29 Del. C. § 10002(c).

"Turning to the keystone, definitional provision of [FOIA], section 10002, a 'public body' consists of two principal elements. First, the organization must fall into one or both of the broad categories of executive or legislative entities of the State or a political subdivision thereof." Delaware Solid Waste Authority v. The News-Journal Co., 480 A.2d 628, 632 (Del. 1984). "The second definitional element of a public body is that the entity be supported by public funds, expend or disburse such public funds, or be specifically charged by any other public body to advise or make recommendations." Id.

In Att'y Gen. Op. 94-IO11 (Mar. 7, 1994), our Office determined that the public record requirements of FOIA do not apply to the judiciary or the Administrative Office of the Courts because it is an arm of the judiciary. 1 Relying on Delaware Solid Waste Authority, supra, our Office concluded that the "judicial role of resolving disputes through the application of judicial precedent" was not an executive or legislative function; therefore the courts were not a "public body" as defined by FOIA.

*2 "[C]onspicuously absent from the definition of a 'public body'" in FOIA "are the words 'court' or 'judicial branch.'" Att'y Gen. Op. 05-1001 (Jan. 18, 1995). A canon of statutory construction is "expressio unius est exclusio alterius, the expression of one thing is the exclusion of another." Priest v. State, 879 A.2d 575, 584 (Del. 2005). By omitting any reference to the judiciary in the definition of a "public body," we believe that the General Assembly intended to exclude the courts from the application of FOIA.

Like Delaware's FOIA, the Illinois public records law defines a public body as "any legislative, executive, administrative, or advisory bodies of the State … which are supported in whole or in part by tax revenue, or which expend tax revenue." 5 Ill.Code § 140/2(a). In Copley Press, Inc. v. Administrative Office of the Courts, 648 N.E.2d 324 (Ill. App.), appeal denied, 657 N.E.2d 617 (1995), the Appellate Court of Illinois held that FOIA did not apply to the Administrative Office of the Courts. "It is a maxim of statutory construction that when a statute enumerates certain items, that enumeration excludes all other items although there are not negative words of prohibition." 648 N.E.2d at 327. "Here, the legislature specifically listed the legislative and executive branches of government without listing the judicial branch. The lack of any reference to the courts or judiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act." Id. at 327-28.

Delaware's FOIA mentions the courts only twice. Section 10002(g)(9) excludes from the definition of "public record" any "records pertaining to pending or potential litigation which are not records of any court" (emphasis added). Section 10004(h) provides that the open meeting requirements of FOIA "shall not apply to the proceedings of: (1) Grand juries; (2) Petit juries; (3) Special juries; (4) The deliberations of any court" (emphasis added).

These two references to the courts underscore the General Assembly's intent to exclude the judiciary from the definition of a "public body" under FOIA. A review of the tapes of the legislative history of FOIA (as originally enacted in 1976) supports this conclusion. According to the tapes, the addition of the phrase, "which are not records of any court", to FOIA's pending litigation exemption was "requested by the press to make sure that court records were not closed which are now open." According to the tapes, Section 10004(h) of FOIA (excluding juries and court deliberations) was intended to make sure that FOIA "shall not be deemed to close any court proceedings which would otherwise be public by court rule."

The legislative history of FOIA therefore evidences the General Assembly's intent not to intrude on the judiciary's authority to issue its own rules regarding access to its records and proceedings. The "courts have inherent authority over their own records" and "the legislature has assured that courts will continue to control their own records premised on legislative respect for the independence of the judiciary as a co-equal branch of government." Harvey v. Hynes, 665 N.Y.S.2d 1000, 1005 (Sup. 1997).

CONCLUSION

*3 For the foregoing reasons, it is the opinion of our Office that the General Assembly, by the way that it defined a "public body" in Section 10002(c), intended to exclude the judiciary from the application of FOIA. Other sections of FOIA (Sections 10002(g)(9) and 10004(h)) further evidence the legislative intent to respect the independence of the judiciary as a separate, co-equal branch of government and the judiciary's right to control access to its records and proceedings by court rule. "There is no indication that the legislative intent behind FOIA was to affect or alter the records administration of the judiciary." Att'y Gen. Op. IO11.

Very truly yours,

W. Michael Tupman, Esquire

Deputy Attorney General

Approved

Lawrence W. Lewis, Esquire

State Solicitor

Footnotes

1
See also Att'y Gen. Op. 95-IO01 (Jan. 18, 1995) (Board of Bar Examiners was not a "public body" under FOIA because it "was established by the Delaware Supreme Court as 'an arm' under its 'inherent power to regulate the practice of law'" (quoting In re Reardon, 378 A.2d 614, 615 n.1 (Del. 1977))).

Del. Op. Atty. Gen. 07-IB02 (Del.A.G.), 2007 WL 756515