‘Unnecessary hoops’: Delawareans voice frustration with accessing state data as lawmaker suggests FOIA rework

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Community activist Amy Roe said she is suing the city of Newark after it denied her open records request for the minutes of closed-door sessions in 2013 and 2014, where they discussed a controversial data center plan.

Roe called going to court to enforce her request for documents “costly and burdensome.”

“The system is so broken,” said Roe, who recently became president of the Delaware Coalition for Open Government. “I don’t want to have to sue my own city. It’s just horrendous.”

Legislation sponsored by Senate Majority Leader Bryan Townsend aims to make it easier to obtain records through the state’s Freedom of Information Act. But the bill keeps the court system as the only avenue that can legally compel a government body to reveal information it would rather keep under wraps.

Delaware’s Freedom of Information Act explained

Delaware’s Freedom of Information Act applies to public bodies and requires access to documents and meetings, unless they fall under one of 19 exemptions. Those include investigative files, autopsy records, documents related to pending litigation and state lawmakers’ emails.

University of Delaware, Newark spend years litigating controversial data center project

In 2013, a proposed massive data center and an accompanying 279-megawatt natural gas-fired combined heat and power plant on the University of Delaware’s STAR Campus was seen as a positive way to increase economic development. But public backlash quickly grew, led by Roe and other activists.

In 2013 and 2014, City Council held 11 executive sessions to receive legal advice regarding the project.

According to Delaware’s FOIA law, entities can meet in executive session for several reasons, including to discuss pending or potential litigation. Those minutes can only be hidden as long as “public disclosure would defeat the lawful purpose of the executive session, but no longer.”

However, Newark officials have continued to deny Roe access to those records, despite the fact that UD terminated the lease for the project in 2014 and all litigation concluded in 2017. The city has argued that attorney-client privilege does not expire and can therefore keep them secret forever.

Bill would broaden public access, but keeps court as enforcement remedy

Townsend’s proposed legislation would reduce the time members of the public have to wait for a response to a request for documents, going to 10 business days instead of 15. It would allow residents of other states to request documents, prohibit charging fees to some members of the public, including journalists and academics, and it would remove the broad FOIA exemption currently enjoyed by the University of Delaware and Delaware State University. It would also ban officials from automatically withholding documents from public view by labeling them as “investigative.”

“This is meant to do a whole lot of different things to expand transparency in Delaware,” Townsend said. “Make it user-friendly, accessible, but not invite people to abuse it and then burden taxpayer costs either.”

The bill cannot become law in its current form because it will expire before the new 154th General Assembly, the next two-year legislative cycle that begins in January.

Townsend said he filed it now to get feedback on his proposed revamp.

John Flaherty is the spokesperson for the Delaware Coalition for Open Government. He said he likes many of the changes the legislation makes to create more transparency.

But he also criticized the bill for a provision that would allow officials to deny requests as “overly-broad,” “unduly burdensome” or “abusive.”

He also supports opening lawmakers’ emails to the public. State lawmakers voted in 2009 to exempt their emails and those of their staff from disclosure.

“If somebody writes in saying, ‘I need to get my road paved,’ we have a right to know that that person is getting a favor and not going through the process everybody else goes through,” Flaherty said. “If you’re a business operating in the state and your competitor gets a favor, you have a right to know what favor they’re getting.”

FOIA law enforcement lacks teeth

When the city of Newark denied Roe’s request for the executive session minutes, she appealed to the Delaware Department of Justice, which issued her a favorable decision.

But the city rejected that decision and a spokesperson for Delaware Attorney General Jennings said their opinions are “non-binding.”

“As Newark has correctly identified,” AG Press Secretary Caroline Harrison said. “FOIA violations are only enforceable voluntarily or by a court of law.”

When a petitioner is seeking records in the public interest, the last resort is state Superior Court. Under the state’s FOIA law, if the Attorney General finds that a violation of this chapter has occurred or is about to occur, the individual may file a lawsuit or request that the Attorney General file suit on the person’s behalf.

Harrison said that the Attorney General’s Office cannot bring litigation against a public body it believes is violating the open records act due to a lack of resources. So, it’s left to members of the public and media outlets to bear the financial cost of enforcing the state’s FOIA law.

Newark has been egging on the AG or Roe to file a lawsuit so it can defend its position in court. A city spokesperson said state law doesn’t allow cities to appeal decisions by the AG’s office.

“The only way a municipality can seek judicial review of a ruling they take issue with is to have either the state or the requester commence litigation against the city,” said Jayme Gravell, Newark chief of community engagement.

Meanwhile, Roe is working through the confusing and costly court process so she can access information she maintains is in the public’s interest to see the light of day.

“There’s no way for somebody that just wants to have the FOIA law enforced by the government to navigate this,” she said. “I feel like I am jumping through such unnecessary hoops on this. It is really burdensome and frustrating.”