The News Journal | by Margie Fishman & James Fisher
Frustrations flare by those seeking information through Delaware’s public records law, designed to keep government transparent.
Unencumbered access to government records can shine a light on farms funneling waste into our drinking water, lobbyists currying favor with legislators over email, teacher misconduct in the classroom, patient abuse at psychiatric facilities and volatile neighbors packing heat.
Yet, in Delaware, all of the above remain off-limits to public inspection. The state consistently ranks among the bottom nationwide when it comes to government transparency and accountability, according to independent studies.
Here, government agencies have no strict deadlines for producing documents, Family Court and Court of Common Pleas documents aren’t available online, taxpayer-supported universities can withhold the bulk of their records, the General Assembly shields its emails from public view and the burden of proof for a public document often falls on the requester rather than the publicly funded agency that’s supposed to supply it.
Coinciding with Sunshine Week this month, The News Journal submitted Freedom of Information Act requests for all FOIA denials since 2012 from a sample of five state agencies, two local governments, the University of Delaware and Delaware State University.
The results reveal that First State citizens often send their public information requests into an abyss of government gatekeeping, riddled with inconsistent fees, persistent delays and denials based on misinterpretations of the law – all without penalty.
“It’s full-time just to follow up on these FOIAs,” said an exasperated Maria Payan, a Selbyville environmental nonprofit consultant.
Payan admits to having a “very tumultuous relationship” with the state Department of Agriculture and Department of Natural Resources and Environmental Control after forking over about $1,000 for public documents related to Delaware’s poultry operations. She has been known to lug her printer to government offices to save on copying fees.
“The next time they screw with me, I’m going to sue them,” the feisty 51-year-old warned.
FOIA battles threaten to fracture the social compact between the government and its citizenry, according to Samuel Hoff, a political science professor at DSU.
Agencies need to “trust that the information people are requesting is not automatically going to be used for a negative, partisan purpose,” he said.
Gov. Jack Markell defended his administration’s moves to expand public access, including 2011 legislation that reduced the administrative costs of FOIA requests and required agencies to better track response times. Earlier this year, Markell unveiled plans for a statewide open data portal which would consist of non-identifiable datasets and documents.
“I’m confident that we are more transparent and open today than we have ever been,” he said.
Delaware’s Freedom of Information Act, adopted in 1977 after the Nixon Watergate scandal, maintains that “it is vital that citizens have easy access to public records” to support a free and democratic society. Public records are broadly defined as information of any kind used by any public body for any public purpose.
The federal government and each state have their own FOIA laws. In Delaware, the law permits citizens to request documents, files, emails and other records from appointed FOIA coordinators, who must respond “as soon as possible” but no later than 15 days from the date of the request.
Processing fees can be charged within reason but “should be minimized to the greatest extent possible,” according to the law. If an agency seeks an extension, it must give a reason, such as additional time needed to search for records in archives or seek legal review. A reason is also required when a request is denied.
Here’s how it really works, according to multiple residents interviewed by The News Journal:
Delaware’s FOIA coordinators regularly demand formal FOIA requests for readily available public information, including contracts, salaries and schedules. These public servants then wait the maximum allowable time – 15 days – to respond to inquiries before asking for indefinite extensions. A flurry of emails ensues, and – if the citizen is not completely disheartened at that point – a denial letter follows or, perhaps, a partial record.
The News Journal, for instance, filed a FOIA request with the city of Wilmington on Sept. 8, 2015, seeking a copy of the city’s legal settlement with three Wilmington police officers who said they were denied promotions because of their race, age and gender. Executed settlement agreements are public under FOIA.
The city did not respond within the mandated 15 days. On Jan. 12, responding to a follow-up email from a News Journal reporter, an assistant city attorney said the newspaper would receive a response by the end of the week, but the newspaper hasn’t received the documents and the city has not explained why it hasn’t turned over the paperwork.
On March 9, responding to another follow-up email from The News Journal, City Attorney Michael Migliore said the case had not been resolved at the time of The News Journal’s original request. (A letter from the plaintiffs’ attorney shows that settlement was reached at the end of August.)
Meanwhile, other local and state agencies respond to information requests promptly, minus the bureaucratic hurdles.
“Everything depends on the person in charge of the agency,” said veteran national reporter Rita Farrell, who teaches communications at Wilmington University. When it comes to media requests, government staff have “not been told what they can do,” she said, “so they err on the side of safety and say nothing.”
In November, the Center for Public Integrity slapped an F rating on Delawarein a state-by-state analysis based on public access to information, legislative accountability, ethics enforcement and other facets.
Scott Edwards, a Washington, D.C.-based attorney, said Delaware deserved to flunk the survey. The co-director of Food and Water Watch, a consumer rights organization that advocates for healthy food and clean water, has filed more than 50 FOIA requests across the country.
In 2014, he began helping Payan and others try to obtain emails related to an environmental report on the poultry industry that was presented to Delaware’s agriculture department.
“I have never had to deal with an agency that has run that much interference,” he said. “What we ended up getting was an agency that was willing to fight citizens for two years and then carefully curate junk.”
Agency-appointed FOIA coordinators handle hundreds of requests a year while juggling other duties managing media and constituent relations. Occasionally, public information requests are outlandish, such as demanding a record of all communications related to “Does (Wilmington) Mayor Williams support Hillary Clinton?” Others fire off requests to the wrong agencies or submit FOIAs to receive basic information found on websites.
More often, requests from citizens and the media seek back-up materials and communications that provide context for votes on building projects, budget priorities and public-private investment partnerships.
“You have to sort of game the system to get the things you want,” said Rep. John Kowalko, a Newark Democrat who has repeatedly asked lawmakers to open up state universities to FOIA and remove the General Assembly’s email exemption.
“When you apply for FOIA, if it’s available at hand, it should be answered,” Kowalko said. “It shouldn’t have to go the max 15 days. But that seems to be the case with almost every FOIA request. It’s a delaying tactic. … Every opportunity to make it inconvenient is used.”
Government officials counter that it takes time to review and catalog an increasing number of FOIA requests with limited staff. Many requests come from out-of-state lawyers trying to circumvent the discovery procedures of a lawsuit, or business owners attempting to gain inside information about a project up for bid.
While the FOIA statute is well-meaning, it can create unnecessary bureaucracy if residents don’t understand when to invoke FOIA and when they can just pick up the phone and ask for information, according to Sussex County spokesman Chip Guy.
“You spend more time, sometimes, going through the machinations of the process, of taking the request, doling out the assignments, setting your deadlines, setting reminders, than it would actually take to gather the data, copy it and send it to the constituent,” he said.
When there’s a FOIA impasse between a citizen and a government agency, Delaware’s chief law enforcement officer weighs in. Citizens denied FOIA requests may appeal within 60 days directly to Attorney General Matt Denn’s office, which also represents the state agencies accused of FOIA violations.
Since 2012, the attorney general’s office has issued 38 formal opinions on FOIA appeals, ruling on everything from improper notice of school board meetings to state police withholding surveillance technology contracts from the public. Records of the legal opinions, published on the attorney general’s website, show that state attorneys sided with government agencies more than 60 percent of the time.
More often, attorneys mediate solutions between petitioners and government agencies by simply asking a public body to produce the records requested, according to office spokesman Carl Kanefsky. State attorneys have issued informal opinions on more than 100 cases over the last four years, according to office records.
The office provides an extensive FOIA training manual online, which includes 11 pages of FOIA exemptions, and runs annual voluntary training for coordinators.
Among the items kept from public view in Delaware are investigatory files associated with a pending or potential lawsuit, medical, personnel and student records, trade secrets, applications for taxpayer-backed projects to the state Economic Development Authority and collective bargaining negotiations.
When Wilmington resident Daniel Young filed a FOIA request in 2012 with the state Department of Safety and Homeland Security, he wasn’t told “no” outright. But he was asked to pay $41,125 to have staff pull the records. Young had requested police reports and statistics for violent crimes within a 10-mile radius of the Four Seasons Plaza over a six-year period.
Kimberly Chandler, a deputy assistant who helps coordinate FOIAs for the department, could not provide details on why the fees were so high. It could’ve been a typo in the record, she said, or the department may have lumped in the cost to purchase new technology to conduct the search.
“We try to be as helpful as we can,” Chandler said, adding that she follows the advice of the attorney general’s office.
In egregious cases, the attorney general is empowered to sue agencies for FOIA violations, but that rarely happens, Kanefsky said. The office has filed one FOIA lawsuit in the last five years.
In 2012, a Delaware Superior Court Judge ruled in favor of then-Attorney General Beau Biden’s claim that the Camden-Wyoming Sewer and Water Authority must provide employee compensation information to the public.
In cases of direct appeals, it can take several months to a year for the time-strapped attorney general’s office to issue a ruling, records show, long after governments vote on contracts or approve controversial developments.
A citizen can accelerate the process by filing a lawsuit, but it is time-consuming and costly. The average citizen is on the hook for attorneys’ fees and court costs if a judge deems a FOIA case “frivolous” or “brought solely for the purpose of harassment,” according to state code.
Previously, the attorney general’s office has ruled against the Delaware Department of Technology and Information for denying public access to assessments paid by telecommunications companies to the Delaware Broadband Fund. State attorneys also sided with the Associated Press after the Department of Corrections failed to provide records on the purchase and storage of lethal injection drugs, despite an earlier determination by state attorneys that the information should be made public.
Many of the Attorney General’s Office’s rulings relate to open meeting violations, such as at the Capital School District in Dover and the Christina School District in Newark. In one of its harsher opinions, the Attorney General’s Office forced the Dewey Beach Town Council to accept a remediation agreement, citing 28 FOIA Open Meeting violations from 2011 to 2012.
Kevin Ohlandt, of Dover, had to open a GoFundMe account after the state Department of Education tried to charge him more than $6,300 to review emails related to the Smarter Balanced Assessment Consortium, a group that backed tough new standardized testing statewide.
Ohlandt, who manages the public education blog, Exceptional Delaware, appealed the cost to the Attorney General’s Office. State lawyers determined in June that the education department had violated FOIA because the “estimated administrative fees were not reasonable.” Attorneys still permitted fees of more than $1,600.
Ohlandt estimates he’s raised half the money so far. With no real repercussions for FOIA scofflaws, he asked, “What’s the point of the law?”
State-funded universities also get a pass.
Delaware and Pennsylvania are the only two states nationwide that exempt public universities from open records laws. In Pennsylvania, Pennsylvania State University’s exemption frustrated the media’s efforts to gain information during the Jerry Sandusky sex abuse controversy.
The University of Delaware and Delaware State University receive more than $150 million annually from Delaware taxpayers, but both institutions have long opposed legislation to bring them under full FOIA compliance.
University representatives say opening up their books would hamper their ability to solicit donations and could infringe on intellectual property. In an interview last year, UD spokeswoman Andrea Boyle said the university each year “produces thousands of pages of records” in response to FOIA requests.
Records show that more than two-thirds of the more than 150 requests under FOIA to the University of Delaware were denied since 2012. At Delaware State University, 10 of the 11 FOIA requests received over the last two years were denied.
Unlike state agencies, state universities can set their own fees for document processing. DSU charges $20 for one to 10 megabytes of data, while UD charges $100 for the same amount of data, according to the schools’ policies. Both universities offer a $100 discount to people receiving public assistance.
Kowalko re-introduced legislation last year to make Delaware’s public universities more transparent, after House Democrats stripped full FOIA compliance from the 2014 bill.
“I don’t want people to think that it’s OK to just get a third of the loaf when you’re a starving family,” the politician said at the time.
Dan Kramer jokes that he’s just a “dumb country bumpkin,” but the Greenwood kettle corn businessman challenged the Woodbridge School Board over private discussions about the superintendent’s contract and “got in the craw” of the Milton Town Council (where he doesn’t even live) for not posting their meeting agendas in a timely fashion. He also accused Sussex County administrators of taking consensus votes away from public view.
“You want me to stop?” he quipped recently. “Then do stuff correctly.”
Records show that the last time Kramer, 70, achieved a meaningful victory was in 2013, when the Attorney General’s Office agreed with his claim that the Woodbridge School Board had committed multiple open meeting infractions. State attorneys ordered mandatory FOIA training for the board and invalidated a board vote to accept the resignation of the district superintendent and to hire a new one.
That inspired Kramer, a part-time auctioneer, to begin attending Sussex County government meetings. “Nobody else is watching them,” he explained.
“Every year when it came time for the budget, they dreaded me coming,” he said. “I told them they could use their budget for toilet paper.”
Kramer, like other rabble-rousing citizens, taught himself every aspect of FOIA, dissecting legal precedents and drafting complaints on his typewriter. One time, he spent 12 hours at a county audit meeting.
Initially, Kramer said Sussex officials would hand him documents without requiring a formal FOIA request. But after he began forwarding his complaints to the attorney general’s office, he said, the free flow of information abruptly stopped.
Sussex spokesman Guy disagreed with that characterization.
“Mr. Kramer gets the same responses from the system in the same time frame that everybody else does,” he said.
Kramer represents just one voice in a loose network of local government advocates that includes the League of Women Voters, Common Cause Delaware and the Delaware Coalition for Open Government.
In 2011, the open government coalition successfully sued the Delaware Court of Chancery in federal court for deciding arbitration cases in secret. More recently, the group has strongly opposed confidential investor financing in start-up data centers in Newark and Middletown.
At a recent meeting at the Wilmington library, eight coalition members discussed loose state regulations of limited liability companies, a lack of transparency in Family Court proceedings and invasive technology that allows local police to collect cell phone information from private citizens.
“I can’t get anything. It’s just a wall,” complained Karen Hartley-Nagle, a Democrat running for New Castle County Council president. She is currently enmeshed in a tense email exchange with county officials over a document related to pension settlements that was labeled “confidential” at a public meeting.
Other coalition members criticized agencies for relying on broad interpretations of FOIA exemptions. FOIA coordinators will cite a vague “potential litigation” exemption, they said, without determining that the “litigation must be likely or reasonably foreseeable,” as required by law. While government executive sessions are permitted to be conducted in private for legal and personnel matters, votes must be taken in public and minutes retained for public inspection.
“The lower you get down on the totem pole, the more difficult it gets,” said coalition board member John Flaherty.
Payan shudders to recall her experience.
In the spring of 2014, Payan and other environmental activists tried to find out more information about a presentation given by University of Delaware Engineering Professor James Glancey, in which he argued that the federal Environmental Protection Agency had overestimated the amount of nitrogen and phosphorous in the Chesapeake Bay that can be traced to the poultry industry.
Payan was living in York County, Pennsylvania, at the time, so she recruited a friend in Millsboro, Cindy Wilton, to file a FOIA request for communications related to Glancey’s report between the Delaware Department of Agriculture, the Maryland Department of Agriculture and the Delmarva Poultry Industry.
What followed were more than a dozen emails over a six-week period between Wilton and agriculture department spokesman Dan Shortridge, according to records reviewed by The News Journal.
Shortridge first asked Wilton to “clarify which ‘2013 study/power point presentation’ by Dr. Glancey” she had referenced and then requested she narrow her focus to specific email senders and recipients. Shortridge also informed Wilton that the department only retains email messages for one year and the cost to search those files would be $400 paid up front.
Taken aback, Wilton appealed to the attorney general. The ruling, issued more than a year after her initial request, found that the agriculture department violated FOIA when it declined to search for earlier emails. Wilton did not respond to a request for comment.
Shortridge said the Agriculture Department gave Wilton all the non-email records she requested within six weeks of her filing a FOIA. Wilton’s request for emails involved a manual search of 11 email accounts, he said, and the department adjusted its procedures after receiving the opinion from state attorneys.
“This was a misunderstanding by DDA of the search process and nothing more,” he said.
Wilton and Payan eventually got the emails after enlisting two attorneys on their side.
“There was nothing relevant,” Payan said. “It was worthless.”
Stories like Payan’s are why Kowalko continues to press for policy changes.
“These little items permitting the public to regain trust in government is beneficial to us in the long run,” he said.
Even as public officials continue to thwart access, Flaherty, of DelCog believes that emerging technologies have improved FOIA response times.
Markell agreed, noting that the state Division of Public Health recently provided The News Journal with more than 4,000 records for drinking water samples tested for lead dating to 2013. The records show that Delaware’s lead levels are nowhere near as high as in Flint, Michigan, according to state officials.
On the transparency front, “we’ve made good progress,” the governor said. “But that doesn’t mean we don’t have more to do.”
What is open and what is closed in Delaware government
Although the General Assembly exempted its emails from the Freedom of Information Act, sessions of the General Assembly and most of its committee meetings are open.
Meetings of the county councils and all city and town councils in Delaware. Their committee meetings also must be open.
Meetings of state agencies, authorities and commissions, such as the Delaware Solid Waste Authority and the Public Service Commission.
Meetings of public school boards.
Meetings of the full boards of trustees of the University of Delaware and Delaware State University.
Most court proceedings in the state Supreme Court, Superior Court, Court of Common Pleas and Justice of the Peace Court.
Public documents held by state and local agencies, unless specifically exempted. Agencies are required to provide “reasonable access” and can charge reasonable fees for copies and costs of retrieving records.
Meetings of the Legislature’s political caucuses, intraparty meetings to discuss legislative priorities and ethics meetings.
Executive sessions of governmental bodies. Executive sessions are restricted to discussions of pending legal action, personnel matters, collective bargaining and other specified confidential matters.
Most proceedings of Delaware Family Court.
Records of people licensed to carry a concealed handgun.
Records held by public libraries that identify patrons and show which materials they have checked out.
Photographs, video or audio recordings of autopsies.
Building plans, architectural blueprints and emergency-response plans.
Medical, personnel or student records.
Most records of the University of Delaware and Delaware State University, unless they pertain to the expenditure of public money.