You have a right to know, insist on it
If you want a public record, don't take no for an answer
By VICTOR GRETO, Delawareonline.com, The News Journal, 03/13/2005

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At a March 2004 public meeting of the Capital School District Board of Education, Robert Reeder, a driver's education teacher, tried to stand up for a colleague who had been fired.

He sat next to the colleague during the meeting, and when he rose and mentioned her name, he heard the slam of a gavel and the voice of the president of the school board. Reeder was told no one could speak her name.

"I am aware the board members were prohibited from discussing personnel issues in a public forum," Reeder later said, "but I could not locate the code that placed that same restriction on the general public."

That's because there isn't one.

Nearly a year after the meeting, on Jan. 3, the Attorney General's Office, which handles all Freedom of Information Act appeals, ruled in Reeder's favor, stating that the board "violated the open-meeting requirements of FOIA by restricting the content of your speech during a public comment period."

"It's a horrible thing, that you can't speak at an open meeting," Reeder said. "I wasn't disruptive. I was merely speaking."

Since the decision, Reeder, now retired, has been back at the meetings, "saying names of individuals."

Every Delaware citizen is entitled to challenge a public board or council about how it follows the procedures or rules dictated for open meetings. And Delaware citizens are entitled to inspect thousands of public documents. The reason why a citizen wants such information or why he or she chooses to challenge a rule doesn't matter.

'Feature of democracy'

Access to information that details what goes on in the government is a basic right, said Robert Justin Lipkin, a professor of law at Widener University who teaches constitutional law and jurisprudence.

"The notion of having governmental information open to the public, at least now, even if it wasn't true in our history, is a fundamental feature of democracy," he said. "Citizens can't act and evaluate government officials if they don't have the relevant information."

The national Freedom of Information Act was first passed in 1966, and toughened with enforcement powers in 1974, soon after Watergate. It allows citizens to access information from federal government agencies, including the Executive Branch, federal regulatory agencies and federal corporations. Congress and the federal courts are exempt. Exceptions also include national security information and personnel rules and procedures.

Similarly, Delaware's FOIA law has many exemptions, including personnel and medical files, investigatory files, intelligence files and public library records. The state Legislature also is exempt.

As in most other states since Sept. 11, 2001, restrictions have been placed on records, "which, if copied or inspected, could jeopardize the security of any structure owned by the State or any of its subdivisions," including building plans and blueprints.

Perhaps nowhere has the result of Sept. 11 been felt more than with the restrictions imposed upon vital records, said Ken Boulden, New Castle County Clerk of the Peace.

If a member of the public asked for a vital record, it would not include a Social Security number, date of birth or genealogical information, he said.

Vital records have been changing for some time. Marriage licenses once included results of blood tests and answers to personal questions, such as whether the woman was pregnant, or whether either partner had a venereal disease, or was ever committed to a mental institution.

Boulden, national chairman of a committee dealing with vital records, management and administration for the National Association of Counties, said his colleagues have imposed restrictions on themselves in what they may release to the general public.

Governor's stance

Gov. Ruth Ann Minner, however, says she supports greater access, not less. "I have always supported the Freedom of Information Act in Delaware," she said. "I am always willing to consider changes to strengthen our FOIA law, but have not heard of any legislative interest lately." State meetings are posted on the Web at delaware.gov/egov/calendar.nsf.

Most of the 20 to 25 public access rulings published on the Delaware Attorney General's Web site each year pertain to citizens protesting meeting times.

The FOIA, or "sunshine" laws, apply to everyone, including newspaper reporters. They apply to Reeder; to Albert Porach, a Newark resident, who has persistently used FOIA to fight the Newark City Council over its dealings with the University of Delaware; to Richard Abbott, a lawyer representing three Middletown residents fighting a rezoning they claim is illegal because it was not done publicly; and to Daniel Kramer, a Greenwood farmer, who has wrestled with the Woodbridge School District for several years over how and when it publicizes selected meetings. He also has filed complaints against the Sussex County Council and the town of Milton.

"All we're asking is that they do it right," Kramer, 59, said of local government. "The public has the right to know the ins and outs of what goes on."

Even when he doesn't get a favorable opinion from the attorney general, Kramer classifies it as a win. "Because it got their heads in a spin," he said. "Within a certain period of time, they know I filed [a Freedom of Information request], and it worries them to death."

It's that worry, Attorney General M. Jane Brady said, which keeps local government on its toes. "They very much don't want to be in trouble with the attorney general," she said. "They don't want to be publicly embarrassed or chastised."

But those who deal with information requests even more regularly than some persistent citizens, from the American Civil Liberties Union to Common Cause and Green Delaware, say that's not enough.

"There's an old saying, that justice delayed is justice denied," said John Flaherty, a lobbyist for Common Cause of Delaware. "What's missing is the aggressive enforcement of the law."

Flaherty cited Common Cause's most recent FOIA appeal, concerning the firing of New Castle County auditor Robert Hicks Jr.

The organization filed a complaint nearly two months ago, charging the county fired Hicks illegally in an unjustified, hastily called special meeting in January. Although the complaint was acknowledged, no action has been taken.

"We're running against deep pockets," Flaherty said, referring to the county's attorneys. Although Flaherty said he was not contending the county had no right to fire Hicks, the way they did it, without proper public notice, was illegal.

"A guy got fired," he said. "The way they did it was not in conformity with the law. When you have New Castle County doing it, it reflects on the smaller counties."

Mayors use it, too

Even government officials use FOIA to obtain documents.

New Castle Mayor John F. Klingmeyer recently filed a complaint with the Attorney General's Office claiming that the New Castle City Council tried to thwart the public's right to know through the "irregular days and times" of meetings it held on the city budget last year, and its unwillingness to tape-record its proceedings.

The Attorney General's Office ruled against him, stating there was nothing in FOIA that required the taping of the meeting, and that the meetings that had been held were properly advertised.

Times have changed enough for tape recording to be required, Klingmeyer said. "There's no reason why governments can't record," he said. "Official minutes don't give you everything. Aside from the state Legislature, most town meetings are attended only by the faithful few, and if you're not there, you count on the minutes."

State Rep. Greg Lavelle, R-Sharpley, demanded documents from New Castle County detailing legal expenses. When the documents provided him were severely edited, he appealed to the attorney general, who agreed with him, and the county provided the more complete documents.

"It's the only time I ever used it," Lavelle said of FOIA. "But I'm glad to have it since I got snubbed by the county."

Despite some successes with the law, many complain about the restrictions in FOIA.

"Our statute is misnamed because it so severely restricts access to public information," said Drewry Fennell, executive director of the American Civil Liberties Union of Delaware. "It has so many exceptions that it makes getting information quite difficult."

First of all, she said, one has to be fairly specific about what documents to ask for; then, "you have to be prepared to litigate," which may cost the average citizen more than he could afford.

The exemptions, both potential and real, also bother Fennell. Under one part of the law that defines "public record," there are 16 exemptions, including "personal privacy," which can have broad implications.

One exemption - "Any records specifically exempted from public disclosure by statute or common law" - can be anything the Legislature deems it wants to shield, Fennell said. "It becomes very easy for the state to make the case that something is covered by one of these exceptions."

Then there's the money involved, said Richard Abbott, a Wilmington attorney. "The exemption says if a citizen has a FOIA dispute with a state agency [which the attorney general represents], you have to go to court and you're out of luck. How many citizens have the experience and knowledge and finances to either do it themselves or to hire an attorney to file a suit?"

Alan Muller of Green Delaware, a state environmental group, agreed.

"The problem with the Attorney General's Office is it provides legal representation to all the different agencies who don't want to comply," he said. "There's a conflict there. There needs to be an independent ombudsman type entity who can support people using FOIA."

Asked if it was a conflict of interest between the FOIA appeal process and the attorney general's role as lawyer to state agencies, Brady said no, citing her office's independence from the Governor's Office.

"If an agency is sued, and what is claimed by the person who is suing is accurate and correct on the law, no one in my office or in the history of my office would stand up in court and defend something that is clearly wrong in the law," she said. "The people are my client, too."

Because FOIA applies only to Delaware citizens, Muller said, it discriminates against out-of-state residents. "Suppose someone from Pennsville wants to find out about the refinery nearby?" he said. "They can't do it."

Last August, New York City political activist and journalist Matthew Lee filed a case in federal court, now pending, claiming the provision that bars non-Delaware residents from the law is unconstitutional. Ten other states, including New Jersey and Pennsylvania, have similar residency provisions in their laws.

Taking action

Some agencies already have dealt with various public concerns.

The state's Department of Natural Resources and Environmental Control has on its Web site a primer for people requesting documents under FOIA. The department will respond within 20 days to any request. Although the cost of copies varies, depending on size and number, the department waives the charge for those who prove they are not "deriving income or other forms of compensation from the use of information obtained through FOIA."

Kathleen Harvey of Odessa, who has filed 15 FOIA requests in the past decade, can certainly understand the need for reform on the fees for copying, which Odessa raised in 2002 from 15 cents a copy to $1 a copy.

'Nitpicker' defends her role

The attorney general recently ruled that the raise in rates was illegal, not because they were "unreasonable," which the law prohibits, but because the town had no written policy. Whether the rates are unreasonable will be decided if someone requests a decision on that specific issue, Brady said.

Most of Harvey's FOIA complaints deal with Odessa's not giving proper notice of meetings.

"I'm not a politician," Harvey said. "I just believe we should be upfront and out front with the public in every decision we make and in what we're doing."

She also is upset that many town officials conduct business through e-mail, which they subsequently delete.

But Brady said her office has addressed the issue, and has forbidden the use of e-mail for public business.

Harvey has been called a "nitpicker" and troublemaker. "But the public has a right to know," she said. "Your honesty and integrity are the most important things you can have. In government, that's paramount. I'm actively involved for those reasons."

Contact Victor Greto at 324-2832 or vgreto@delawareonline.com.

ON THE WEB

• Delaware's Freedom of Information Act
• Delaware Sunshine Act
• Guide to Delaware's open records laws by the Reporters Committee for Freedom of the Press
• Attorney General FOIA Policy Manual
• National Freedom of Information Coalition
• Guide to federal FOIA requests

EXTRAS

• Printable FOIA pamphlet

Q & A: YOUR RIGHT TO KNOW
The Delaware Attorney General's Office produces a brochure answering 10 commonly asked questions about FOIA:

Q: Does the open-meeting law apply to all branches of the government?

No. FOIA does not apply to the General Assembly or to the courts, which have their own rules for who can attend what proceedings.

Q: Can I attend any government meeting?

As a general rule, all meetings of public bodies must be open to the public. This means that the public body must post notice of the date, time and place of the meeting at least seven days in advance, unless there is an emergency. Notice must be conspicuously posted where the public body regularly meets. The notice also must include the principal items of public business to be discussed.

Q: Can meetings be closed to the public?

Yes, in some circumstances. FOIA permits a public body to meet in executive session, out of public view, to discuss personnel and other confidential matters.

Q: Do I have a right to speak at a public meeting?

Not under FOIA. Each agency has its own rules and procedures for public meetings and most do allow time for public comment. The attorney general encourages public bodies to allow citizen participation.

Q: How can I look at public records?

A public body can require you to make a written request to inspect public records. As a general rule, the public body should respond to your request within 10 days. If the request is granted, you can inspect the public records where they are regularly stored during regular business hours.

Q: Will this cost me anything?

FOIA permits a public body to charge a fee for the cost of copying a public record, usually 25 or 50 cents per page. If there are a large number of records, the public body also may charge for the time and expense of retrieving the records.

Q: Can any records be withheld?

Yes. FOIA and other state and federal laws prohibit disclosure of certain information; for example, personnel or student records; tax returns of other citizens; Social Security numbers; health and welfare records; Family Services records; criminal history records; investigative files; prisoner records. The Driver's Privacy Protection Act also limits your access to personal information about other Delaware drivers.

Q: Do I have a right of access to judicial records?

Not under FOIA. FOIA does not apply to the courts. But you may have a common-law right of access to judicial records, subject to court rules.

Q: What can I do if I am denied access to a public meeting or a public record?

Under FOIA, you can file a written complaint with the Attorney General's Office. The Civil Division will investigate and make a written determination whether a public body has violated FOIA.

Q: Will the attorney general investigate a state agency?

No. The attorney general will not investigate a complaint against a state agency because FOIA does not allow the attorney general to investigate agencies that it represents. You have a right under FOIA to sue in court if you think your rights of access have been denied.

Source: State of Delaware, Department of Justice