Transparency advocates: Update FOIA for 21st century

Government transparency advocates say there’s no reason in 2022 that public information should be as difficult to access as it is in Delaware.

“At the root of democracy in Delaware and in the United States is citizens’ access to government information — and not just access, but easy access,” said Charlie Copeland, co-director of the Caesar Rodney Institute’s Center for Analysis of Delaware’s Economy & Government Spending.

Copeland and others are advocating for updates to Delaware’s Freedom of Information Act, commonly referred to as “FOIA.”

FOIA is a series of laws designed to guarantee that the public has access to public bodies and their records. 

Journalists often make FOIA requests to compare statements made by politicians and bureaucrats against official documents. In other cases, the government may wish to not publicize information that could draw negative attention, and FOIA can help gain access to that information.

FOIA isn’t just useful to journalists. Parents may use it to request information about a public school’s curriculum, for example. Concerned citizens may make requests to determine how much money has been spent on a local road construction project. Meeting attendees could file a complaint alleging a violation at a meeting, as Wilmington Charter parents recently did, or as a constituent in Indian River School District did last year.

Despite the access it provides, many government transparency advocates say the process is unreasonably cumbersome, government agencies frequently falsely claim exemptions for information, and the penalties for violating the law are inconsequential.

Copeland and others point out that the only recent proposal by the legislature to reform FOIA aimed to make it more restrictive, not less.

Unlike books at a public library, public records can’t simply be searched for and retrieved. Instead, a formal request must be made to an agency’s FOIA coordinator, who then determines whether the requested records exist, and if so, whether they should be released. 

When the General Assembly passed the state’s FOIA law in 1976 (with seven amendments), it affirmed that “It is vital in a democratic society that public business be performed in an open and public manner.”

To that end, the General Assembly said citizens must have the opportunity to observe the performance of public officials and monitor the decisions that they make in formulating and executing public policy.

“…Further, it is vital that citizens have easy access to public records in order that the society remain free and democratic,” the law says.

It’s those words that make FOIA “a blueprint for action,” said John Flaherty, board member with the Delaware Coalition for Open Government.

“It gives you a floor of rights that you can rely on when you’re looking for either public documents, or when you’re challenging public agencies that don’t have agendas or minutes or don’t meet in places that can accommodate the number of people that want to attend,” Flaherty said.

In an op-ed published by the Caesar Rodney Institute, Copeland says Delaware’s FOIA process has failed to evolve since its adoption in the late-1970s.

“I was in high school in 1977 and remembered calling my friends on our landline phone and running the long cord into the closet so I could have some privacy,” Copeland writes. “Forty-five years later, the technological world and the state government have changed immensely. Yet, the FOIA process has remained largely unchanged.”

Copeland believes the process should be reimagined as one that is proactive, not reactive.

“Every document created today is created digitally … and even documents received by the state as hardcopy can be scanned into a digital format to be on the computer,” Copeland writes. “The state of Delaware simply needs to post … all public information on its website so that search engine crawlers can index the pages for web searches.”

 To do this, Copeland argues, the state needs:

• A definition of public information, which already exists in the 1976 FOIA law,
• A person in each department to facilitate the process, which already exists in FOIA Coordinators, and
• An information technology infrastructure to handle the documents.

“Every government agency has a FOIA coordinator by law,” Copeland told Delaware LIVE News. 

The FOIA coordinator is designated by a government agency or body to help requesters identify and locate the public records they’re seeking. 

“The problem is that coordinator is actually defined to be restrictive rather than proactive, so you have to change their focus,” Copeland said.

Flaherty said FOIA coordinators “in many ways, are not really coordinating anything. They’re kind of just blocking the public’s access.”

Under the current FOIA law, requesters can fax, mail, email or submit a FOIA request form with the agency or public body corresponding to their interest. Requesters should expect a response, denial with explanation, or notice of a need for more time, within 15 business days.

Under Copeland’s vision, FOIA coordinators would ensure that every public document is automatically uploaded to a database, barring ones that contain legitimately non-public information like privileged health information or other sensitive data.

There would remain some issues, Copeland said. For example, he doesn’t expect government agencies to upload every email involving a government employee to the database, though many of them would still be requestable.

“By eliminating the broad requests for information, targeted requests become much easier to handle on a case-by-case basis,” Copeland said. 

“But those would be the exception. The rule would be that we default to this information being searchable on the internet.”

Flaherty said Copeland’s proactive approach is a “good idea in theory.”

“I think we’d have to work out some of the practicalities of it,” he said. “But generally, I do think we need to go toward more disclosure and making it easier for people to gain access to documents, and then you wouldn’t have to be bugging the various agencies if you could just get those documents yourself.”

Flaherty was sure to temper expectations.

“A lot of people are impatient and they want everything now, but that’s not realistic,” he said. “You have to make, I think, small incremental changes, and I think we’ve done that since 1976.” 

Copeland conceded that the odds are slim of the government implementing the kinds of changes he’s proposing.

“Elected officials, generally speaking, don’t want accountability,” he said. “Accountability makes their jobs harder and they really don’t want a hard job. They want to run unopposed and wait for crises and then react to the crises.”

He said for most elected officials, the primary motivation is fear — fear of an opponent or of losing their office. 

“And so they act that way,” he said. “So they want to keep everything as hidden as they can.”

The government’s failure to evolve isn’t something that’s unique to FOIA, Copeland said, but it is something fairly unique to government.

“If a business chose to ignore reality and fail to adapt to the changing times, they’d go out of business,” he said. “Well, the government has no mandate to stay current on anything because they don’t go out of business.”

One of the biggest obstacles for government agencies and citizens alike in creating an effective public records system is how expansive government has become, he said.

“You really didn’t need a FOIA process before 1977 because the government was pretty small — it didn’t do that many things,” Copeland said. “You could just call somebody and say, ‘Hey, I want to know about this.’”

As the government — now the state’s largest employer — grew to its current size, officials realized that a formal procedure would be required to facilitate all the incoming requests for information.

Flaherty said Delaware has made steady improvements in the past few decades. He said one improvement is allowing citizens to submit FOIA requests using the internet rather than through the mail.

The state’s Delaware Open Checkbook and Delaware Data give citizens access to information without the need for a FOIA request, Flaherty noted.

There are also areas where the state has obscured access to information, such as the General Assembly’s 2009 decision to exempt lawmakers’ emails from FOIA disclosure requirements.

While the bill ostensibly increased access to legislative committee meetings by redefining committees as public bodies, an amendment sponsored by Rep. Pete Schwartzkopf, D-Rehoboth, created exemptions for e-mails received or sent by members of the General Assembly or their staff and communications between members, between members and their constituents, or by members on behalf of their constituents. 

Flaherty believes that was a mistake.

“Communications to the General Assembly should be public,” he said. “If a constituent writes to their elected official, why is that top secret? In most cases, they’re asking for a favor, and I think the public has a right to know what their legislators are doing and for whom.

“The other thing you’re seeing more and more frequently is this idea that executive branch agencies can write something to a legislator that’s automatically exempt from FOIA disclosure,” Flaherty added. “That’s ridiculous. I think they’re just looking for a way to hide things that might be embarrassing.”

Copeland, who represented the Hockessin area in the Delaware Senate from 2003 to 2008, said he “give[s] a little bit of a nod to the legislature.”

“The one thing a legislator has that a government employee doesn’t is that a legislator is elected,” he said. “Anytime they implement policy, they have to vote on a bill. That’s a public vote, and you can see what’s in the bill, and you can decide whether you think they’re representing you well.

“So there is accountability every two or four years for your legislator. There isn’t accountability for one of the 13,000-plus state employees who are protected under merit and other things.”

Flaherty said that while Copeland’s idea for a proactive FOIA system is “great,” there are other, more measured steps that could be taken to improve transparency.

For one, he said, there should be “meaningful penalties” if an agency intentionally obstructs a member of the public from gaining access to documents.

“Right now there really isn’t,” he said. “When you win a FOIA complaint, you may get some publicity or you may get some remediation, but it’s very mild, at best.”

For example, on Sept. 23, 2022, the Department of Justice found that the Office of the Auditor repeatedly violated FOIA by failing to respond to a request for information about work with a third-party contractor.

The request was filed on July 29, 2022. On August 25, Jack Guerin, the requester, filed a petition asking the Department of Justice to determine the Office of the Auditor violated FOIA by not responding.

In response, the Department of Justice requested that the Auditor’s Office provide a response to the allegations by Sept. 2, 2022, which it did not. The Department of Justice contacted the Auditor’s Office on Sept. 6 and gave them an additional two days to respond. 

The Auditors Office did not respond by Sept. 8, 2022, or any time thereafter.

The penalty? The Department of Justice gave the Auditor’s Office an additional 15 days to respond, beginning Sept. 23.

Because the Attorney General’s office is solely responsible for adjudicating FOIA complaints, Flaherty said they might “feel the political heat of having to take on a governor or some other bigshot when it comes to a FOIA request.”

Copeland and Flaherty agree that, at the very least, the state shouldn’t make it harder to access public information.

They say that’s exactly what some legislators and the attorney general tried to do last year with Senate Bill 155.

The bill would have allowed government officials to deny requests for public records they deem “unreasonably broad, unduly burdensome, abusive” or intended to “disrupt the essential functions of the public body.”

During the bill’s committee hearing, a representative from the Delaware Department of Justice said the state’s FOIA law already prohibits disclosing certain information, including personnel or student records, tax returns of other citizens, Social Security numbers, health and welfare records, Family Services records, criminal history records, investigative files and prisoner records.

The bill was released from committee but removed from the Senate agenda before it received a vote.

Afterward, bill sponsor Sen. Kyle Evans Gay, D-Ardens, tweeted, “As a state Senator, I fully support government transparency. The intent of SB155 is to prevent Delaware’s Freedom of Information Act from being abused by filers who harass state employees or overwhelm state agencies with requests.”

Gay followed up with, “Out of respect to our shared interest in an open and transparent [government], I have paused this legislation to continue conversations. I believe we can find a solution that preserves the sanctity of our FOIA process while addressing its abuse.”

Flaherty pointed to an analysis by the Coalition for Open Government, which found that since 1995, “of the 580 FOIA opinions issued in response to citizen complaints by the Delaware attorney general, no complaints were labeled unreasonable, disruptive or abusive” and that “no examples have been provided of FOIA requests that have been fulfilled under the current law, but would have been denied under the proposed law.”

Copeland told Delaware LIVE News that, under his model, government agencies wouldn’t have to deal with broad, burdensome, abusive or disruptive requests.

“When I have access to a web browser and search engines, why can’t I find stuff that belongs to me as a citizen of the state?”