Why Would FOIA Not Apply to the Wilmington Mayor’s Office?
DelCOG (and John Flaherty) informs us of something pretty alarming — that AG Biden’s office officially thinks that the Office of the Wilmington Mayor is *not* covered by FOIA. How can that be, you ask? According to the DelCOG letter, the AGs office has issued an opinion at the Wilmington Mayor’s office is not subject to FOIA because the Mayor’s office is a 1 person agency. To be fair, I have not seen the actual decision (it isn’t posted on their website that I can find), but John Flaherty is normally a very reality-based person, so I’m inclined to trust his take on this.
I can’t even begin to imagine why they’d look at the Mayor’s Office as a one person agency — except to note that if they can make this fly, they can exempt from FOIA the offices of lots of elected officials, since technically (under this criteria it seems to me) they are one person agencies. And why would a one person agency be exempt from FOIA anyway? It seems to me that the criteria for FOIA ought to be whether or not the office is doing the work of the public — not how many people the office has.
A note on the circumstances of this — while the African American Heritage Center is still tilting at windmills here (IMO), since they responded to an official RFP, it seems to me that they would want to pursue some action regarding the procurement itself if their story on the presentations is correct. But that might interfere with tilting at windmills.
Contact the AGs office and John Flaherty if you think that this is the wrong position on the applicability of FOIA to the Mayor’s office. And I’ve reposted the entire letter here:
April 12, 2012
The Honorable Joseph R. Biden, III
Delaware Attorney General
820 French St.
Wilmington, DE 19802Dear Attorney General Biden:
We are writing to urge you to reconsider the Freedom of Information Act (FOIA) opinion issued by Deputy Attorney General Kent Walker who stated that the Office of the Mayor of Wilmington is not a public body under FOIA because it has only one member, the Mayor himself.
Mr. Walker contends the Office of the Wilmington Mayor is a 1 person agency not covered by FOIA.
A google search for the Office of Wilmington Mayor, comes up with an office consisting of 12 smiling individuals that make up the staff for the Mayor’s Office.
I have attached the staff directory for the Office of the Mayor for your review.
As you are aware, under the Freedom of Information Act, the jurisdiction of the Attorney General is limited to the determination of whether a citizen has been denied access to public records or to meetings that were in fact conducted but either not properly noticed or not conducted in an open manner as required by Delaware law.
In a complaint submitted to the Attorney General’s Office on March 8, 2012, by the ‘African American Heritage Center of Delaware’, the Center alleged that they were denied access to a public hearing involving the Delaware Historical Society when the topic of the meeting was the spending of thousands of dollars of public monies by the Society on the establishment of a African-American museum.
It is not the purpose of this letter to take sides in a dispute between groups as to who is best positioned to operate an African-American Heritage Museum.
Rather, it is the purpose of this letter to reiterate and demand that the public has a right, under FOIA, to expect that when a public meeting is held and the agenda is the spending of thousands of dollars of tax payers monies, that meeting should be conducted in an open manner as required by Delaware law. That did not happen in this case.
We urge your personal involvement to reconsider this matter and to issue an opinion that conforms to Delaware’s Open meeting law and not an opinion based on conjecture and misunderstanding.
Sincerely,
John D. Flaherty,
President
Delaware Coalition for Open Government
712 W. 26th St.
Wilmington, DE 19802
email jdf0000@aol.com
cell 302-319-1213
Tags: Beau Biden, FOIA, Open Government
John’s letter has it right. The mayor has a chief of staff and a staff of 12. How is that a one person agency? Didn’t the Chief of Staff just resign his office to run for Mayor because of a possible conflict? This decision says he didn’t have to do that, because his position doesn’t really exist, the Mayor is a one man show, all his staff are an illusion.
When I attend Committee meetings in the city there is always a staff person present and they introduce themselves as representing the Mayor’s office.
If the Mayor’s office, the city executive, isn’t covered by FOIA then is the governor’s office or any other executive office in the state or country? This opinion is nonsense.
School Districts all have a superintendent’s office. Is that a FOIA protectorate?
Mr. Walker’s opinion, as described here, could come in handy for: the Office of the Governor, the Office of the State Insurance Commissioner, the Office of the President of the University of Delaware, the Office of the Senate President Pro Tem and, who knows, perhaps even the Office of the Attorney General.
However, one can only imagine how Mr. Walker might have to contort himself in court to defend this position — when his logic would be questioned by judges, not a potential beneficiary of his opinion.
mike4smom makes an excellent point — if the Mayor’s Office is really only one person then Bill Montgomery certainly did not need to resign for conflict issues. Because how can there be a conflict if he doesn’t technically exist?
The other point to make here is that since the other people in the Mayor’s office do not exist, that these dozen or so people ought to be first up in the budget-cutting process.
If I recall correctly, isn’t there a pending FOIA issue concerning whether the mayor’s office is required to release salaries/earnings of Wilmington police officers? It would seem that this opinion would give the mayor’s office the necessary cover to skirt that request too.
BTW, I seem to recall –either during his first campaign or early in his first term — that our AG was asserting that he would be support improved transparency in state government. Either he has forgotten that, or my memory is playing tricks.
There’s basically two issues regarding the release of WPD salary/earning data that the City showily wants some review of:
1. Whether the City can release to City council people (who are supposed to provide legislative oversight!) data on salaries, earnings, hours worked.
2. Whether the city can make some of that same data available to the public.
They are trying to conflate these two issues, but the first instance is a no brainer to me. City Council people with oversight responsibilities should certainly get this data. The second one is worth the discussion, but I do think that they should make this data available.
I like cassandra_m’s point about the budget cuts.
I will say too, that I believe the police salary data should be available. My brother is a police officer in NJ and his salary data is public as was mine when I worked for the University System of Georgia.
Though it’s hard to say without the AG opinion, I’m guessing that at issue here is whether the open meetings law applies to the mayor’s office, not the open-records provisions. I believe it’s been previously held that agencies such as the governor’s office, the county administrator’s office, etc., do not have to follow the open meetings laws – only public bodies, such as councils and commissions. Otherwise, Markell would have to open up all his meetings to the public, which would be ridiculous. The open records laws should still apply.
The issue appears to be whether the meeting was a public hearing – in which case the group should not have been barred – or a meeting between the mayor, his staff and others. The latter type are not required to be public.
It would be worth asking the AG’s office why it’s behind on posting opinions. They should go online the day of release, especially since the FOIA handbook appears to no longer be updated.
The police pay issue is entirely separate. That has to do with a provision in the police bill of rights that the cops say trumps FOIA.
I’m not sure who agreed to the cops bill of rights, but there should not be any agreements made by government agencies that specifically trump the FOIA requirements (unless is it a legit national security issue, which cops’ salaries and overtime hours are not).
And the distinction on Public Meetings is interesting. But the lack of the opinion makes it hard to see what the real deal is. Since everyone was responding to an RFP, though, I have to beleive that there are procurement rules that allow for Best and Final type presentations to be closed for reasons of commerical data security.
“I’m not sure who agreed to the cops bill of rights…”
That would be a General Assembly of more than two decades ago. It’s a travesty, but it passed easily because nobody in Dover has the balls to stand against the State Police.
Oops…nobody except Ruth Ann Minner.
Walker’s opinion makes sense. An office is not a “public body,” and never has been.
Here’s *another* FOIA opinion not posted on the AG’s website. Looks like they’re way behind. Paging Joe Rogalsky … what’s up with this?
http://capegazette.villagesoup.com/news/story/board-of-adjustment-meeting-held-properly/809690
Here are more details on the *likely* issue behind this opinion. Note this is just my supposition until the AG’s office posts the opinion or Flaherty sends it out.
The open meeting requirements of FOIA, however, do not apply to “[p]ublic bodies having only 1 member.” 29 Del. C. § 10004(h)(6). See, e.g., Del. Op. Att’y Gen., No. 01-ib15 (Oct. 23, 2001) (holding the open meeting laws do not apply to the County Administrator because he is a “body of one.”) … When an executive body of one exercises his or her decision-making authority, the open meeting requirements of FOIA usually do not apply to fact-finding discussions with staff. Del. Op. Att’y Gen., No. 01-ib15 (Oct. 23, 2001). Where, however, an executive official delegates any of his or her decision-making authority to a group of individuals, FOIA might apply because the group may amount to a “committee” appointed by an executive body.
Source: The Reporters’ Committee for the Freedom of the Press
http://www.rcfp.org/delaware-open-government-guide/i-statute-basic-application/c-what-bodies-are-covered-law
The Rehoboth opinion has been posted. Still no sight of the Wilmington one.
http://attorneygeneral.delaware.gov/office/opinions/2012/12-IIB6.pdf