Karen Weldin Stewart Doesn’t Like Open Government
A tipster sent me this link to the newly proposed regulations for FOIA requests to the Insurance Commissioners office. There are a few things that look somewhat odd to me.
First, there will be no public hearing on these regulations. Not a big surprise, given the IC’s record of backroom dealings. The public has until October 4th to submit comments. No word on what qualifications one must have to be able to question the regulations, like the previous issues that we have had with asking questions on RFP’s.
Second, if I am reading this correctly, the records must be reviewed at some arranged time and place, but there doesn’t seem to be a way to take the documents with you. How cool would it be to hang out with one of the Insurance Commissioners lackeys while reading all of her emails? Not too cool, because it appears that they will bill you for their time while they are watching you read the records.
Third, you could be in for a pretty big bill. You will be charged for finding the files, copying the files, having someone watch you while you read the files, printing time for electronic records, and time for a lawyer to review the records before they show them to you.
Tags: FOIA, Karen Weldin Stewart, Open Government
Billing for lackey’s time appears to be boilerplate in FOIA regs for other DE agencies as well, so it’s not just the IC’s idea. I wonder how common this is in other states or in Federal FOIA.
If I pay them extra, will they show me the “special” files?
I can’t imagine paying a public official to do their job would survive a court challenge, but that would cost even more.
A state employee who is helping you with FOIA access isn’t being taken away from their job – that IS part of their job.
DE FOIA:
You know when we are predisposed to dislike or oppose someone we often jump to conclusions at every opportunity. Methinks I see that here.
And sometimes those conclusions are justified, you know?
DNREChas a decent FOIA policy. I have some objections/improvements to suggest here, but this attempts to be clear and comprehensive. They are obligate themselves to more detail in their responses re: denial of requests and tell you how information can be labeled confidential and they provide some discussion on how some of the fees can be waived. While I think that this can be better (confidentiality can be more easily handled), it certainly provides a much better roadmap to getting data than the DOI rules do.
and there is a rule that stops you from going on record with these suggestions during the comment period? Just askin’
CRI cost the state thousands in the hugely time-intensive process for the extensive FOIA asked and granted from IC. I imagine this is in reaction to that. Hopefully DL will go ahead and comment as well as complain. I would guess that if you ask for a public hearing they will grant you that.
For a minute I almost missed Lee Williams.
CRI cost the state thousands in the hugely time-intensive process for the extensive FOIA asked and granted from IC.
Think how much money they could have saved the state if they just handed the data over without a fight.
and there is a rule that stops you from going on record with these suggestions during the comment period?
No there isn’t. And I’d bet that there are alot of people who read here who would have never known about this comment period if LG didn’t post about it.
But more importantly, going on the record with any observations doesn’t mean that we can’t discuss those observations here (or anywhere else for that matter)…..
Your comments will go in the round file at OIC (not that you shouldn’t send them). The place to start making noise is with legislators or Markell or Denn for a more general FOIA reform.
flying by the point which is your privlege. I bet a whole lot of people find out a whole lot of things here first. that is a very good thing. i am merely pointing out that there is a lot of “contempt prior to investigation” regarding politicions who are rightly or wrongly perceived in a negative light by the folks that run this operation. But as I have said before its your sandbox and i do enjoy it agree or disagree:)
i am merely pointing out that there is a lot of “contempt prior to investigation” regarding politicions who are rightly or wrongly perceived in a negative light by the folks that run this operation.
Indeed. And we have spoken directly about this — having honestly earned that contempt, it is also possible to earn some respect. We’re still waiting on that last part.
Couldn’t the governor issue an executive order directing agencies not to bill citizens for lackey time related to FOIA requests? Let’s be clear where applying pressure will produce the most results.
Perhaps a good legislative reform would be to disallow billing for lackey time, but to allow more time for the FOIA response.
the records must be reviewed at some arranged time and place, but there doesn’t seem to be a way to take the documents with you.
Uh … so why is there a large section in there about costs for photocopying? [BUZZ] El Gee Fail.
The problem with reading regulations like this on their own is that you don’t get a complete understanding of their context. Departmental FOIA regs take place against the backdrop structure of state law. They can’t override that law, just supplement it.
I therefore direct your attention to 29 Del Code § 10003: Examination and copying of public records.
(a) All public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body. Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen. If the record is in active use or in storage and, therefore, not available at the time a citizen requests access, the custodian shall so inform the citizen and make an appointment for said citizen to examine such records as expediently as they may be made available. Any reasonable expense involved in the copying of such records shall be levied as a charge on the citizen requesting such copy.
(b) It shall be the responsibility of the public body to establish rules and regulations regarding access to public records as well as fees charged for copying of such records.
I’m guessing the reason that the DOI’s new regs are spelling all this out is indeed because of the CRI requests. If they didn’t have a regulation in place already explicitly stating that the agency could charge for employees’ time spent searching for records, they can’t charge the requestor. My guess (and it’s just a guess) is that they tried to charge Lee Williams, he countered by saying “No, you can’t ask me to pay for Mitch Crane’s time reviewing the records, so just give me my bill for the copies and screw off.” It’s something that has be done explicitly.
Many questions about Delaware’s FOIA law can be answered by checking out the Open Government Guide by the Reporters Committee for Freedom of the Press – http://www.rcfp.org/ogg/index.php?op=browse&state=DE
this horse has been well beaten, i don’t begrudge an opinion and there is no more ground to cover in my view. You will get a chance to have some real fun with KWS about 18 months from now. Currently I am interested in the political comedians that are at center stage now:)
anon wrote: Couldn’t the governor issue an executive order directing agencies not to bill citizens for lackey time related to FOIA requests?
Yeah, but that wouldn’t apply to the DOI or other independent agencies not under his control.
It’s written into state law that agencies can charge for search & duplication time, but only if their regulations explicitly say that they will. To change that across the board, Markell and the GA would have to change the law. And given the GA’s asinine behavior over applying FOIA to itself, I don’t think that’s going to happen any time soon.
Also: The attorneys routinely have to review records released under FOIA to make sure that there isn’t exempt information in there, such as personnel info or other exemptions. They could get sued if they released, say, a state worker’s SSN. That’s standard procedure at all government agencies – it’s not a sinister plot by DOI.
Well, DOI makes a big deal about not being funded by taxpayer dollars anyway, so the rationale for citizen reimbursement doesn’t really exist.
There might be a case there due to the unique funding of DOI. If I reimburse them for lackey time, doesn’t that reduce the fees paid by the insurance companies, money being fungible? So why the hell would I want to reimburse an insurance company for time spent fulfilling a FOIA request?
Lawyers reviewing docs before they are released may be SOP in Delaware, but it is not SOP for all Fed agencies, or even for all states. Lawyers reviewing everything seems like a colossal waste.
Cassandra – What planet are you from? Of course someone has to review the documents. If it’s not an attorney, then it’s a highly experienced, highly paid staffer who knows the ins & outs of the public records laws and their exemptions. No public agency just sends stuff out the door without reviewing it. In Delaware, that task has largely been relegated to the attorneys for each agency. That’s just the way it works.
What planet are you from? I never said that NO ONE reviews the documents — I responded to your statement that lawyers review everything in state agencies. My only point is that LOE is overkill — even the Feds get by with lesser staff for much of their FOIA release.
Lets respond to what gets written here, not what you want to get your poutrage on for, ok?
anon – The rationale for reimbursement has nothing to do with taxpayers. Until each state agency sets up its own FOIA unit, with dedicated staffers, other workers have to be pulled off their regular jobs to do the searches & copying. That incurs costs and time, and an agency needs to recoup that somehow or its efficiency suffers.
Not allowing reimbursement means that a group of people could simply flood an agency with FOIA requests at once and effectively bring its operations to a halt, with everyone pulled off their regular tasks. Requiring reimbursement allows for the hiring of temp workers or other options to get the agency’s primary mission accomplished.
Yes, the bills can be huge. But that’s the price we pay for having a government that won’t put basic records up online where everyone can access them. We’re still in the damn dark ages here.
And why, pray tell, is it overkill? If you were a state employee whose personal information was contained in certain records, wouldn’t you rather have a lawyer looking over the records instead of a $10-per-hour clerk?
Lawyers also are required to keep client information confidential. It’s far safer to have a lawyer review a file and redact a SSN, for example, than a junior paper-pusher who could take that SSN and commit identity theft.
And “poutrage”? Really? How clever you are. So when was the last time you submitted a FOIA request?
I submit FOIA requests to the Feds pretty routinely in my day job. As in maybe once every 4 weeks or so. FOIA requests to various states maybe on a frequency of about every 6 weeks.
Your argument might mean something if every possible record the State has contains an SSN. They don’t. Not by any stretch. Review and release of much of the data the public would want can be handled at a lower level that a lawyer. And in most of the places I deal with — which is way more than you — they certainly are dealt with using non-lawyers.
Uh … so why is there a large section in there about costs for photocopying?
My thought was that the FOIA requester would be reviewing copies of documents. It may not be the case, but if you can just pick up the copies, what is the billable service of:
4.1.1.1.2 Monitoring file reviews
Doesn’t this seem to indicate that the files don’t leave or sneak out in someone’s sock? And why in the world would you need “schedule a mutually convenient date, time and place for the inspection of the public records” when they could be mailed or picked up?
other workers have to be pulled off their regular jobs to do the searches & copying. That incurs costs and time, and an agency needs to recoup that somehow or its efficiency suffers.
So then let DOI recoup it from its corporate patrons.
when they could be mailed or picked up
Or they could be e-mailed to you.
Or each agency could start electronic reading libraries and put up routinely requested records on line so they can review and release them *once*.
LG – If you read Delaware’s FOIA, it clearly states that people can either inspect records or get copies of records. A state department cannot override that by requiring only inspections. That’s not the way any attorney would interpret that section in the context of Delaware’s FOIA
When you are dealing with original copies of files, especially sensitive records, monitoring is SOP. I believe even a former presidential national security adviser, Sandy Berger removed classified material from the National Archives – so no, you can’t trust anyone.
Cassandra – You have no idea what I do, nor how many FOIA requests I submit regularly. It’s roughly on par with yours, though sometimes a little more frequently in spits & spurts. And they are mostly here in Delaware, which is all that matters when it comes to examining Delaware law. I wish we could follow the laws of some other more enlightened states – such as Ohio, where personnel files are public! – but it’s going to take some time for the GA to get the backbone to make more changes.
Don’t get me wrong. I’m all for access. I think Markell and the GA need to step up to the plate and modernize Delaware’s access laws. But until such time as Mr. Transparency grows some balls and his officials stop trying to hide embarassing records by not posting them online (a la the refinery fine that TNJ reported a few weeks ago), we have to live in the system we have.
Or each agency could start electronic reading libraries and put up routinely requested records on line so they can review and release them *once*
We finally agree. This is one thing the feds do right.
You have no idea what I do, nor how many FOIA requests I submit regularly. It’s roughly on par with yours, though sometimes a little more frequently in spits & spurts
More poutrage. And you have no idea what I do all day. And yet that didn’t stop you from challenging what I knew about this process. But if you were reading at all what I wrote, my assessment of the excessive LOE of lawyers reviewing each request is based precisely in my experience doing this and pointing out where others do it somewhat better.
Better reading comprehension, please.
Think how much money they could have saved the state if they just handed the data over without a fight.
*
I think it has to do with the Attorney General’s office getting involved to assist in the redaction process.
Believe it or not, to let certain business information out and about is a violation on several levels and is pursuant to legal action if ‘let out to the public’ willy nilly.
The supposed thousands spent in time consumed to find the balance between the public right to know and corporate confidentiality is evidently a dicey row to hoe.
Is the alternative to carefully culling emails (with the AG dept. in oversight) better that being sued for millions potentially by some corporation who has their captive insurance business with Delaware? Who knows.
The way that the Feds handle this s to tell businesses submitting data to them to specifically mark this data as confidential and not for public use. If pages or data are released without the proper marking, then that is the fault of the company submitting — not of the government. And really, I’m always going to know better what data from my company is sensitive, so why not have companies mark it and get the AG or whoever out of the picture?
That sounds sensible. All this should be reflected in Comments and I think a public hearing would be a benefit all around.
What CRI reported on was INTERNAL stuff from the DOI. I don’t recall a lot of stuff on the companies it regulates. What KWS and her masters were trying to hide was the stuff that showed how they pay some guy to run a division who lives several states away and works another job. It had nada to do with confidential corporate data.
Geek may want to walk back his post once he realizes that this FOIA policy was taken lock, stock and barrel from Jack’s new FOIA policy for OMB. Yup, the IC lifted it from Markell’s people. But then, just because DL has expressed their continuing distain for KWS for this policy, it surely can’t mean that they’d assume an alternate position about dear Governor over the same, now would it? Naw. But I would guess that if Geek was aware of the source of this policy he would not have written this post. GAMER.
anony, that may have been what CRI reported on but it wasn’t “all they FOIA’d”. Not that you would know. CRI asked for and received as near as was possible, every single email sent and received by the IC…
What do you think you are talking about? Internal? The guy you are talking about is aces at the Bureau’s business – convincing big business to park their cash here in trusts that self insure their employees’ health care liabilities. It ain’t rocket science but neither is it something that any Joe off of craig’s list could manage. as seems to be your angle.
Seriously, y’all, this policy is Jack’s policy for OMB. Let’s see some outrage. I understand that it was put into law via a housekeeping bill. Does that mean it was in Quinn Johnson’s sweeping bill back in February that included the sneaky jump in allowable registered small party members to get on a frickin’ ballot?