Does Delaware's open records law give the public access to Court on the Judiciary disciplinary proceedings?

Official title

95-IB02 RE: Freedom of Information Act Complaint 29 Del. C.§ 10005(e) Court on the Judiciary

Plain-English summary

A citizen asked the AG to determine whether he was wrongly denied access to records and non-sworn testimony from a proceeding before Delaware's Court on the Judiciary, the body that handles judicial discipline. The AG reviewed the Court's own order on the matter and agreed with its conclusion: because the Court on the Judiciary's functions necessarily involve the deliberations of a court, FOIA's open meeting requirements don't apply to it at all, a specific statutory exemption covers judicial deliberations. Since the proceedings themselves weren't "public meetings" under FOIA, the records generated by those proceedings weren't "public records" either, so the requester had no right under FOIA to inspect them.

Currency note

This opinion was issued in 1995. 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

Q: Can a Delaware citizen use FOIA to get records from a judicial disciplinary proceeding?
A: No, according to this opinion. The Court on the Judiciary's deliberations fall outside FOIA's open meeting requirements because of a specific statutory exemption for judicial functions, so its records aren't "public records" under the Act.

Q: Why doesn't FOIA apply to a court's deliberations the same way it applies to a town council?
A: Per this opinion, the exemption exists because the Court on the Judiciary's core function is judicial deliberation, which the statute treats differently from the meetings of ordinary administrative or legislative public bodies.

Background and statutory framework

The complaint concerned a citizen's request to review records and testimony from a Court on the Judiciary proceeding. Applying the citizen petition procedure at 29 Del. C. § 10005(e), the judicial-proceedings exemption at § 10004(h)(4), and FOIA generally at 29 Del. C. Ch. 100, and adopting the Court's own determination that its deliberations fall outside FOIA's open meeting requirements, the AG found no FOIA violation in denying access to the requested records.

Citations and references

Statutes:

• 29 Del. C. § 10005(e), authorizes a citizen to petition the Attorney General for a FOIA determination
• 29 Del. C. § 10004(h)(4), exempts judicial deliberations from FOIA's open meeting requirements
• 29 Del. C. Ch. 100, Delaware's Freedom of Information Act

Source

• Landing page: https://attorneygeneral.delaware.gov/1995/01/24/95-ib02-re-freedom-of-information-act-complaint-29-del-c-§-10005e-court-on-the-judiciary/
• Original PDF: not linked from landing page

Original opinion text

Civil Division-New Castle County

January 24, 1995

Del. Op. Atty. Gen. 95-IB02 (Del.A.G.), 1995 WL 794531

( concluding that proceedings before Court on the Judiciary are not subject to the “open meeting” provisions of FOIA, and that any records pertaining to such proceedings are not ”public records” subject to public inspection )

Mr. Bruce L. Hoster

P.O. Box 134

Bethel, DE 19931

RE: Freedom of Information Act Complaint 29 Del . C .§ 10005(e) Court on the Judiciary

Dear Mr. Hoster:

Please consider this the Attorney General’s written determination to 29 Del . C . § 10005(e) in the above-referenced matter.

As you are aware, after the Attorney General’s Office received your complaint on December 17, 1994, it was required to conduct an investigation to determine the validity of the complaint. 29 Del . C . § 10005(e). Your complaint was forwarded to the Court on the Judiciary and Kathy L. Howard responded attaching a copy of the Court’s November 16, 1994 Order. The Court attached this Order to its response to your original request for information in November, 1994, but it was not included by you with the information submitted with your complaint.

Your complaint refers to a proceeding before the Court on the Judiciary and your attempt to review the record and non-sworn testimony pursuant to the Freedom of Information Act (the “Act”). You requested an opinion on the legality of the Court’s denying you access to these materials.

A review of the Court’s November 16, 1994 Order reveals that the information requested by you is not within the scope of the Act. As the Court notes in paragraph (4):

The functions of the Court on the Judiciary and its arms necessarily involve the deliberations of a court. Therefore, the provisions of 29

Del

.

C

. Ch. 100 (the “Freedom of Information Act”) are not be their terms, applicable to the matters referred to herein, and the Freedom of Information Act may not constitutionally be construed to be applicable thereto;

The Court finds that the exception to the Act provided by Section 10004(h)(4) applies to the Court on the Judiciary. The deliberations of the Court are not public meetings, and therefore, the records of these meetings are not public records. The Act does not support your request for information.

Very truly yours,

James J. Hanley

Deputy Attorney General

John K. Welch

Deputy Attorney General

APPROVED:

Michael F. Foster

Acting State Solicitor