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The following bill will be introduced as Senate Bill 223 tomorrow, and will be accompanied by a simple constitutional amendment (Senate Bill 224) that makes it stick long beyond this year. It is likely that this is the “compromise” legislation that Sen. Adams mentioned in the paper, and it will likely have the support of the majority of the Senate and the House.

And before you detractors say anything about stunts or showboating, know this: Sen. Copeland offered Sen. Adams the opportunity to be the lead sponsor on this bill.

You see, we just want a good FOIA bill to be passed into law, not credit for having done so. Can’t say as much for Karen Peterson.

SPONSOR:

 

• • • DELAWARE STATE SENATE 144th GENERAL ASSEMBLY

 

• • • SENATE BILL NO.

AN ACT TO AMEND TITLE 29 OF THE DELAWARE CODE RELATING TO A MORE OPEN LEGISLATURE.

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

Section 1. Amend Chapter 9, Title 29 of the Delaware Code by designating the existing sections as “Subchapter I. General Provisions.”, and by adding thereto a new subchapter to read as follows:

“Subchapter II. Freedom of Information.

§ 925. Legislative Findings.

At its core, a truly democratic and free society requires that the public business of its elected officials be performed in an open and public manner. The members of the General Assembly, as the duly-elected representatives of the public of which they serve, have an immutable and constant obligation to ensure that the legislative process that they oversee in trust for the public remains open and accessible to citizens of this State so that the public shall have the opportunity to observe the performance of their elected officials and to monitor the decisions that are made by such officials in formulating, considering and executing public policy. Toward these ends, and to further the accountability of the legislative process to the citizens of this State, this subchapter is adopted.

§ 926. Open Meetings.

• (a) Every Legislative Committee of the General Assembly of the State shall be open to the public except those closed pursuant to subsections (b), (c) and (e) of this Section.

• (b) A Legislative Committee may call for an executive session closed to the public pursuant to subsections (c) and (e) of this Section, but only for the following purposes:

• • (1) Discussion of an individual’s qualifications to hold a job or pursue training unless such person requests that such a meeting be open;

• • (2) Preliminary discussions on site acquisitions for any publicly-funded capital improvements;

• • (3) 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 State;

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

• • (5) Discussion of the contents of documents that are deemed to be non-public records pursuant to § 10002 of Title 29 where such discussion may disclose the contents of such documents;

• • (6) Personnel matters in which the names, competency and abilities of individuals are discussed, unless such individuals request that such a meeting be open.

• • (7) Discussions that could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of any individual.

• (c) A Legislative Committee may hold an executive session closed to the public upon affirmative vote of a simple majority of members present at a meeting of the Legislative Committee. The vote on the question of holding an executive session shall take place at a meeting of the Legislative Committee which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the meeting 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, with the results of the vote made public.

• (d) Nothing in this Section shall prohibit the removal from a public meeting any person who is willfully disruptive of the conduct of such meeting.

• (e)(1) The subsection 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.

• (2) All Legislative Committees shall give public notice of their regular meetings, and of any intent to hold an executive session closed to the public, consistent with the Rules of such Chamber of the General Assembly. However, such public notice shall be at least two (2) 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 Legislative Committees’ meeting. In respect to Legislative Committee meetings in which multiple meetings are necessary, public notice of the initial meeting shall be provided as set forth elsewhere in this Section while public notice of any subsequent meeting(s) necessary to continue and/or conclude the business of such initial meeting may be provided by announcement at the conclusion of business for the day at the initial meeting as well as at the conclusion of business for the day of any subsequent meeting(s). Alternatively, adequate public notice for any Legislative Committee meeting for which it is necessary or helpful that multiple meetings be held to conclude the business of such initial meeting shall be met if, at the time public notice for the initial meeting is provided, a notation is included in such notice that announces the initial meeting on a certain date and notes that such meeting shall continue from day to day until such time as is necessary to complete the business for which the initial Legislative Committee meeting was held.

• (3) All Legislative Committees may hold a special or rescheduled meeting and shall provide public notice of the type set forth in paragraph (2) of this subsection of any special or rescheduled meeting as soon as reasonably possible. A special or rescheduled meeting shall be defined as one to be held at a time less than that set forth in the Rules of such Chamber of the General Assembly, and if no such Rules are applicable, less than two (2) days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include a brief explanation as to why the notice required by paragraph (2) of this subsection could not be given.

• (4) Public notice required by this subsection shall include conspicuous posting of said notice in Legislative Hall and electronic posting of said notice to the designated State of Delaware web site approved by the Controller General.

• (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 as soon as reasonably possible.

• (f) Each Legislative Committee shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this Section, and shall make such minutes available for public inspection and shall electronically post such final approved minutes of open public meetings to the designated State of Delaware web site approved by the Controller General. 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 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.

§ 927. Examination and copying of Legislative Records.

• (a) All Legislative Records shall be open to inspection and copying by any citizen of the United States during regular business hours by the custodian of the records designated by each Chamber and by Legislative Council on behalf of the Division of Research and the Controller General’s Office. 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 and any reasonable costs of labor required to produce such records shall be levied as a charge on the citizen requesting such copy.

• (b) It shall be the responsibility of each Chamber of the General Assembly, as well as Legislative Council on behalf of the Division of Research and the Controller General’s Office, to establish rules and regulations regarding access to Legislative Records as well as fees charged for copying and production of such records.

§ 928. Definitions.

• (a) The definitions used in § 10002 of Title 29 of the Delaware Code shall not apply herein. Furthermore, no definitions herein or elsewhere shall be interpreted or read herein to include any caucus of the House of Representatives or the Senate of the State of Delaware.

• (b) ‘Agenda’ shall include but is not limited to a general statement 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 grounds therefore.

• (c) ‘Legislative Committee’ means an official committee, subcommittee, ad hoc committee, special committee, temporary committee, advisory committee, task force, study group, joint committee of the two (2) Houses or Legislative Council of the General Assembly of the State, which is formally created by an Act of one or both Chambers of the General Assembly. ‘Legislative Committee’ shall not be deemed or interpreted or in any way understood to mean or include any caucus of the General Assembly.

• (d) ‘Legislative Record’ is information owned, made, used, received, produced, composed, or otherwise compiled or collected by either Chamber of the General Assembly or any Legislative Committee thereof, 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. There shall exist an attorney-client privilege between the Members of the General Assembly and their legal counsel. Nothing provided in this definition or in this Subchapter or anywhere else may be read as a means to circumvent, violate or otherwise waive such privilege. For purposes of this subchapter, the following Legislative Records shall not be deemed public:

• • (1) Any records held or retained in the personal files or personnel files of the members of the General Assembly or of any member of a Legislative Committee thereof or of their respective staff as well as employees of the Division of Research or the Controller General’s Office;

• • (2) Any records to or from a member of the General Assembly, his or her staff, all staff of the General Assembly, or employees of the Division of Research or the Controller General’s Office;

• • (3) Any records to or from a constituent of the respective member of the General Assembly, his or her staff, or employees of the Division of Research or the Controller General’s Office.

• (e) ‘Meeting’ means the formal gathering of a quorum of the members of any Legislative Committee for the purpose of discussing or taking action on public business.

• (f) ‘Public business’ means any matter over which the Legislative Committee has supervision, control, jurisdiction or advisory power.

• (g) ‘Public funds’ are those funds derived from the State or any political subdivision of the State.

§ 929. Enforcement.

(a) If a purported violation of this subchapter occurs due to the action of a House or Senate Committee or custodian of its Legislative Records, any member of that Chamber (at the request of a citizen or for him/herself) may introduce a Simple Resolution from the Chamber floor which contains the reason(s) the subchapter was violated and the prescribed corrective action (release of denied Legislative Records and/or negation of any Legislation Committee action taken in violation of this subchapter). No motion to table or place in Committee shall be in order, and a roll call vote must be taken within 2 legislative days of its introduction.

(b) If a purported violation of this subchapter occurs due to the action of a Joint Committee or custodian of the Legislative Records of the Controller General’s Office or Division of Research, the same procedure shall be followed as set forth in subsection (a) of this section except that the Resolution shall be Concurrent, it shall be initially introduced in the Chamber of the Joint committee Chair or Legislative Council Chair, and, if passed in the initial Chamber, must be voted upon in the other Chamber within 5 legislative days of the initial vote.”

Section 2. Effective Date.

The provisions of this Act shall take effect on January 1, 2009. All provisions and effects of this Act shall be prospective in nature and application only, from January 1, 2009 forward.

SYNOPSIS

 

• This Act, modeled in relation to the Freedom of Information Act, amends Chapter 9, Title 29 of the Delaware Code by adding a new subchapter thereto, and allows access to official Legislative Committee meetings, except for certain specific executive sessions that may be closed and caucus meetings. Specifically, the Act amends Chapter 9, Title 29 of the Delaware Code by inserting new section 926 which establishes that only an official Legislative Committee of the General Assembly of the State shall be open to the public except those closed pursuant to subsections (b), (c) and (e) of section 926. In addition, a Legislative Committee may call for an executive session closed to the public pursuant to subsections (c) and (e) of this Section, but only for the purposes set forth therein. A Legislative Committee may hold an executive session closed to the public upon affirmative vote of a simple majority of the members present at a meeting of the Legislative Committee. The vote on the question of holding an executive session shall take place at a meeting of the Legislative Committee which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the meeting minutes. The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in section 926. 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, with the results of the vote made public. Nothing in the Act shall prohibit the removal from a public meeting any person who is willfully disruptive of the conduct of such meeting. Furthermore, the notice requirements for meetings set forth in the Act shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety. The Act further requires that all official Legislative Committees shall give public notice of their regular meetings, and of any intent to hold an executive session closed to the public, consistent with the Rules of such Chamber of the General Assembly. However, such public notice shall be at least two (2) 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 is 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 Legislative Committees’ meeting. In respect to official Legislative Committee meetings in which multiple meetings are necessary, public notice of the initial meeting shall be provided as set forth in section 926 while public notice of any subsequent meeting(s) necessary to continue and/or conclude the business of the initial meeting may be provided by announcement at the conclusion of business for the day at the initial meeting as well as at the conclusion of business for the day of any subsequent meeting(s). Alternatively, adequate public notice for any Legislative Committee meeting for which it is necessary or helpful that multiple meetings be held to conclude the business of such initial meeting shall be met if, at the time public notice for the initial meeting is provided, a notation is included in such notice that announces the initial meeting on a certain date and notes that such meeting shall continue from day to day until such time as is necessary to complete the business for which the initial Legislative Committee meeting was held.The Act allows any Legislative Committee to call a special or rescheduled meeting and requires that a Legislative Committee shall give public notice of any special or rescheduled meeting as soon as reasonably possible. A special or rescheduled meeting shall be defined as one to be held at a time less than that set forth in the Rules of such Chamber of the General Assembly, and if no such Rules are applicable, less than two (2) days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include a brief explanation as to why the notice required in section 926 could not be given. Section 926 sets forth that where public notice is required such notice shall include conspicuous posting of the notice in Legislative Hall and electronic posting of the notice on the designated State of Delaware web site approved by the Controller General. If the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice as soon as reasonably possible. The Act also requires that each official Legislative Committee shall maintain minutes of all meetings, including executive sessions, conducted pursuant to section 926, and shall make such minutes available for public inspection and shall electronically post such final approved minutes of open public meetings to the designated State of Delaware web site approved by the Controller General. The minutes shall include a record of those members present and a record by individual members of each vote taken and action agreed upon. The minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to Section 926, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer. The Act further provides that all Legislative Records shall be open to inspection and copying by any citizen of the United States during regular business hours by the custodian of the records designated by each Chamber and by Legislative Council on behalf of the Division of Research and the Controller General’s Office. Reasonable access to and reasonable facilities for copying of these records will 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 and shall be consistent with the response and production requirements set forth elsewhere in this subchapter. Any reasonable expense involved in the copying and production of such records shall be levied as a charge on the citizen requesting such copy. The Act also requires each Chamber of the General Assembly, as well as Legislative Council on behalf of the Division of Research and the Controller General’s Office, to establish rules and regulations regarding access to Legislative Records as well as fees charged for copying of such records. In addition, the Act amends Chapter 9, Title 29 of the Delaware Code by inserting section 928 which provides a definition section. Among other things, section 928 clarifies that Legislative Committee is to be read and understood to mean only an official committee, subcommittee, ad hoc committee, special committee, temporary committee, advisory committee, task force, study group, joint committee of the two (2) Houses or Legislative Council of the General Assembly of the State, which is formally created by an Act of one or both Chambers of the General Assembly. In addition, the defined term “Legislative Committee” shall not be deemed or interpreted to include any caucus of the General Assembly. Violations of the subchapter may be challenged by Resolution which, if passed, would mandate release of the Legislative Records and/or negation of any Committee action taken. Finally, the Act makes clear that this Act shall take effect on or after January 1, 2009. Furthermore, all provisions and effects of this Act shall be prospective only in nature and application, from January 1, 2009 forward.

AUTHOR: Senator Copeland