AG’s Office routinely violated open records laws

The News Journal | by Margie Fishman

Greenwood kettle corn maker Dan Kramer appreciates life in the slow lane.

Except when it comes to state government.

All told, the septuagenarian has spent more than four years waiting for the Attorney General’s Office to rule on his public information requests, making him the longest-running petitioner in recent memory.

“You’re just sitting here, wondering what in the world is taking so long for them to come to a conclusion,” drawls Kramer, who has filed six appeals with the state attorney general since 2011, four of them unsuccessful. “It totally flabbergasted me.”

State law mandates that Delaware’s top law enforcement official rule on Freedom of Information Act appeals within 20 days. In reality, the appeals process drags on for months or even a year, long after governments vote on contracts or approve controversial developments, a News Journal analysis found.

State attorneys blame the backlog on the staffing shortages, increased workload, and case complexity.

“No judge in Delaware has a similar mandated timeframe for conducting all fact-finding, legal research and opinion-writing in a case,” Department of Justice spokesman Carl Kanefsky said.

The News Journal analyzed 88 AG opinions dating to 2011 that included the original petition date. Half ruled in full or in part in the petitioner’s favor.

Four, or less than five percent, were issued within the requisite 20 days.

Attorney General Matt Denn’s office takes an average of 169 days to rule on appeals, records show, compared to 113 days during Beau Biden’s last three years in office.

One complaint, in which Kramer alleged that Sussex County Council discussed public business at a private luncheon, took Denn’s office 490 days to issue an opinion. State attorneys sided with the county, but only after Kramer filed a second complaint when the same luncheon occurred a year later with no word on his appeal.

Under the Delaware Freedom of Information Act, citizens are entitled to request public records from public bodies and receive a response within 15 business days. When records are denied or public business is decided behind closed doors, constituents can appeal to the attorney general for resolution.

The Department of Justice’s “unacceptable” FOIA track record threatens the social compact between the government and the governed, according to John Flaherty, past president of the Delaware Coalition for Open Government, a nonprofit committed to government transparency.

In the end, petitioners battling bureaucracy just give up, he said.

Flaherty compiled a database of more than 350 FOIA appeal decisions dating to 1994, back when Attorney General M. Jane Brady was in office. His records point to chronic delays getting worse over time.

During Brady’s decade at the helm, 28 FOIA petitions languished for more than 100 days. Denn already has surpassed that number during his 2½ years in office.

The attorney general’s FOIA website and training materials omit the 20-day mandate while emphasizing that public agencies have a maximum of 15 days to respond to FOIA requests and petitioners have up to 60 days to file appeals. State attorneys can reject appeals when petitioners wait too long to file.

On June 16, Denn’s office weighed in on an appeal after a record-breaking 579 days. The petitioner, the Dover Post newspaper, had requested revenue and payout information from the state Lottery Commission but had been rebuffed.

“While I sincerely regret the delay in issuing this determination, I conclude that the Lottery did not violate FOIA in denying your request,” Chief Deputy Attorney General LaKresha Roberts wrote in the opinion.

“The issue was complex and there was a lot of back and forth between the parties,” Roberts explained recently, adding that the 20-day timeframe was “never realistic.”

On Friday, in response to a News Journal inquiry, the department changed its policy to streamline the process for public information appeals toward the goal of meeting the 20-day deadline. The new procedures will be posted on the department’s website, Kanefsky said.

Now, the Attorney General’s Office will notify public bodies about petitions within 10 days of receipt (as required by state law) and request a written response within three business days of giving such notice. The petitioner may then submit a reply within three business days before state attorneys issue their opinion.

The result, according to Roberts, will be less discussion among the parties and “less informative opinions.”

“In the past, our approach has been focused on doing the research, allowing everybody to have an opportunity to be heard and to provide well-reasoned decisions that would educate the public and provide guidance,” she said.

Denn’s office functions as a watchdog for local and state agencies responding to public information requests in a state that consistently ranks in the bottom nationwide when it comes to government transparency and accountability, according to independent studies.

A News Journal investigation last year found that FOIA requests in Delaware enter an abyss of government gatekeeping, inconsistent fees, persistent delays, and denials based on misinterpretations of the law.

From 2014 to 2016, the number of petitions received by the Attorney General’s Office more than doubled to 49, according to department records. Not every petition results in a formal, published opinion if the office is able to broker a solution.

Even with the spike in petitions, the Attorney General’s Office hasn’t evaluated response times, shuffled staff responsibilities or formally approached the General Assembly to adjust deadlines or fund more FOIA attorneys. FOIA appeals are a priority, Roberts said, but they get sidelined during a state budget crunch.

Today, one of 65 attorneys in the justice department’s civil division is mostly dedicated to FOIA matters, Kanefsky said, assisted by other attorneys who have other responsibilities.

The office’s $36 million budget, a two percent increase over last year, includes $33 million in personnel costs. Kanefsky said that increase reflects rising health insurance costs, not additional funding for more employees.

Faced with ballooning caseloads and stagnant salaries, 13 prosecutors have left the Department of Justice’s criminal division since September. There are 100 pending homicide cases, Roberts said.

At the same time, a FOIA petition to the Attorney General’s Office is not just a request for information, Kanefsky said. It’s a dispute akin to a lawsuit, involving much debate, with the Department of Justice acting as both judge and jury.

Flaherty, who has extensively researched Delaware FOIA appeals, countered that not all cases are overly complicated. Some of the same issues resurface, such as whether an informal gathering of public officials without a quorum constitutes an open meeting. (It doesn’t).

Unlike in a court of law, FOIA appeals in Delaware are free to the petitioner and state attorneys’ opinions are advisory only, which means they carry no real penalty.

Similarly, the Attorney General’s Office isn’t penalized for missing deadlines.

State Rep. John Kowalko hopes to change that. The Newark Democrat, who has advocated for greater government transparency, suggests publicly reprimanding and imposing financial repercussions on all public agencies, including the Attorney General’s Office, that stall FOIA requests.

“It’s a cooperative effort to become less transparent,” he explained. “FOIA laws are not there to create a system that can obscure or obstruct FOIA requests.”

National logjam

FOIA delays aren’t limited to Delaware. A 2015 Center for Public Integrity assessment of state ethics and accountability cited multiple states where appeals stretch months to more than a year.

In Delaware, there was “no evidence” that the Department of Justice independently investigated potential FOIA violations, according to the report.

“In fact, the Department of Justice does not consider that part of its duties,” the report said, quoting Kanefsky. Kanefsky elaborated Friday that the department does gather information from both parties to form legal opinions on appeals.

Nationally, the Obama administration, which pledged to be “the most open and transparent [administration] in history,” was widely criticized for not responding to FOIA requests within the required 20 days. A Deloitte and Touche report found that the backlog of federal FOIA requests more than doubled to nearly 160,000 from fiscal 2009 to fiscal 2014.

Delays are understandable given the explosion in communication technologies, from email to text to Instagram, according to James Tierney, a former Maine Attorney General who runs State AG, an educational website on the office of the state attorney general.

Redacting documents to exclude personnel or investigatory information requires a “human eyeball,” Tierney said. “Every time they’re speeding up the FOIA request, something else is not getting done.”

States take different approaches to FOIA appeals. Some require constituents to directly appeal to the office that denied them the records. Others refer them to a Public Access Ombudsman or to Superior Court. Many empower their attorneys general to handle disputes.

In Pennsylvania, an independent office called the Office of Open Records has fielded 18,000 Right-to-Know Law appeals since it opened in 2009. The office has a budget of more than $2.5 million and 18 employees, including 13 attorneys who only handle open records and open meetings issues. Unlike in Delaware, they issue binding opinions that are enforceable in court.

The legal team receives electronic alerts when opinions are due, according to Deputy Director Nathan Byerly.

As a result, Byerly can count on one hand the number of times they missed their 30-day deadline.

“The longer you take to get the information to [the petitioner]…the problem may be that much bigger or may just be irrelevant at that point,” he said.

Popcorn connoisseur Kramer, who still has one FOIA appeal outstanding, says Delaware’s long delays can actually work to his advantage.

Local officials “dot their I’s and cross their T’s” while awaiting a verdict from state attorneys, he said.

“If I would’ve filed every time I could’ve filed something against [Sussex] County, there would’ve been one a month,” he quipped. “Sometimes I just bite my tongue and keep on truckin.'”

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