Bill Would Subject UD, DSU to State FOIA Laws

DOVER – Delaware’s two public four-year universities would be treated as public bodies under the state’s open government laws under legislation filed in the House.

House Bill 331, sponsored by Rep. John Kowalko, would remove an exemption in Delaware’s Freedom of Information Act for the University of Delaware and Delaware State University. Currently, only the universities’ boards of trustees are subject to FOIA, while the rest of the institutions’ activities, records and meetings are exempt.

State law generally defines public bodies in part as an entity or body established by the General Assembly that “is supported in whole or in part by any public funds.” Since fiscal 2008, the state has allocated more than $1 billion in the budget to the two colleges – more than $830 million for the University of Delaware and more than $245 million to Delaware State University. Delaware Technical & Community College, which also receives state funds, is not exempt from FOIA.

“I want to be clear: the University of Delaware and Delaware State University are excellent institutions of higher learning, and Delaware families are fortunate to have two great in-stat options for their children,” said Rep. Kowalko, D-Newark. “At the same time, we as a state have allocated more than $1 billion the past seven years to these two schools. It is inconsistent to consider yourself a public body when it comes to receiving millions of dollars in public funds each year, but then turn around and say you aren’t a public body under FOIA. It can’t cut both ways.

“What we’re saying with this bill is that if UD and DSU are going to receive public funds, then the public should have a right to examine their records and have access to meetings where policy decisions are made. State-funded schools in most states already are subject to FOIA, so this bill just brings Delaware’s colleges in line with the vast majority of public universities.”

Rep. Kowalko noted as an example a 2011 University of Delaware decision to cut men’s cross-country and track and field as sports and demote them to club status, a move that was met with surprise, national attention and no public warning or input beforehand. If UD was subject to FOIA, Rep. Kowalko said, the public could have gotten answers to questions about the reasoning and basis for that decision and could have been informed of the possibility sooner through open meetings.

According to the National Conference of State Legislatures, Delaware is one of only two states that directly exempts major universities from FOIA requests.

HB 331 has six House co-sponsors and has been assigned to the House Administration Committee.