Markell Issues Executive Order on FOIA Requests
Governor Markell signed an executive order today that marks a step forward to a more open and transparent state government. He also signed legislation creating a universal FOIA form.
Markell issued an executive order requiring the changes — the most wide-ranging since the Freedom of Information Act took effect in 1977 — shortly before signing separate legislation establishing a standard form for all FOIA requests. The new, universal form could eliminate needless, duplicative bureaucratic hurdles faced by those requesting records of government activities.
The Executive Order requires that state agencies (1) charge a flat rate of 10 cents per page for copies, with the first 20 pages free, (2) forward all FOIA requests to appropriate agencies if inquiries are misdirected or better able to be answered by another government unit, (3) accept requests by mail, fax, email, in person or by the new universal form, (4) have a designated FOIA coordinator to assist and serve as a contact person and (5) will no longer charge for the cost of legal reviews needed to determine if documents are exempt from the law, and other administrative costs for responding to requests will be kept to a minimum, with advance notice provided before billing for the expense.
These all seem to be common sense reforms that will make it easier for the Delaware citizen to get the information that he or she is entitled to as a Delaware citizen.
I agree. Good common sense reform that makes it easier for the public to hold government accountable. If only Markell would issue an Executive Order to state agencies regarding public access to legislators’ work records for their non-legislative state jobs…
Having said that, Gov. Markell deserves high marks for this. He’s definitely moving Delaware in the right direction when it comes to open government.
not in education.
John… hence the phrase “when it comes to open government.” Please do not become one of those commenters that can never give credit to a politician on one issue because they disagree with that politician on another issue.
El Som – Under the AG’s interpretation, that access would have to be granted by the GA itself. It wrote the post-9/11 security law. A governor can’t just supersede that by executive fiat.
So we’d need either a new AG or a new law.
Well, you know what I think of the AG’s Rosemary Woods-like interpretation of post-9/11 legislation to protect something not requiring protection. An embarrassing joke of an opinion. An opinion specifically designed to hide the offenses of state legislators from the public. The Delaware Way at its worst.
Plus, one would think that the Governor, as chief of the executive branch of government, could order agencies of the executive branch to release the information. Would leaders of executive agencies, who are appointed by the Governor, defy the Governor’s edict?
Now, I understand why no governor would want to issue that order–especially with Speaker Gilligan, President Pro-Tem DeLuca and Senate Minority Leader Simpson all holding cushy state-related jobs.
But that’s no reason to give credence, or to ascribe finality, to the AG’s opinion, which is just that, an opinion, not settled law. That opinion should be challenged in court. I’d sign a petition to do just that.
There shouldn’t be any per-page charge for electronic documents that can be emailed in their original form.
Good point, Puck.
I would assume this only applies to public documents not already in electronic form. At least, I’d HOPE so.
Unfortunately, this still leaves the “DE university loophole” that has been closed in all but 2 states (PA is the other).
In DE FOIA requests made to either UD or DSU regarding actions of the Board of Trustees can only be issued regarding actual full board meetings. Both Boards therefore do all of their real business in committees, never make the work documents part of the record, and stand behind their FOIA exemption to avoid turning over any real records. What they do at full Board meetings is vote to approve summarized committee reports that don’t contain any documents, and are therefore exempt.
Given that between them DSU and UD collect around $150 million per year in State funds, this has always struck me as a really significant problem.
Great point, Steve. UD tells you nothing.
Also, I’d like to know why I can’t go to my local school district office and sit at a desk and read the documents I have requested at no charge. I can sit there and take notes on what I am reading. I’m good at notes.
The next step is invalidating excessive fees from school districts and other agencies for work employees must do with respect to your request. FOIA requests should be factored into the cost of doing business since they are so common. I shouldn’t have to pay your employee’s salary. If a judge rules a request frivolous, I could see the point, but otherwise, you work for me.
Also, I’d like to know why I can’t go to my local school district office and sit at a desk and read the documents I have requested at no charge. I can sit there and take notes on what I am reading. I’m good at notes.
Another Mike: You absolutely can do this. Reviewing records is free. As long as you don’t want copies, they can’t charge you a penny to sit there and review. Are you being told otherwise?
Now, there may be charges associated with administrative and legal reviews. It does take time and manpower to sort through records and find the exact ones you’re looking for. But what Markell did with this EO was say that state agencies couldn’t charge the cost of legal reviews over to residents – so I’m hopeful municipalities and schools will start following that path, too.
The UD/DSU issue will take more than an act of the GA – it will take an act of God. They’ve got the legislature so wired it’s not even funny.
I’d like to see a requirement that all FOIA’d documents have to become publicly available for download on the agency website. That is an update whose time has come. There’s no reason FOIA’d documents should be only given privately to the requester.
There are too many documents being FOIA’d that should have been already on the agency website in the first place. Instead of defensively reacting to FOIA requests, the PIOs should be pro-actively reviewing their material and making it public on their own.
Many excellent reforms in Markell’s new policy. The required FOIA coordinator for each state agency is particularly welcome. I wonder, though, what the rate will be for the costs of staff time in complying w/ FOIA requests.
The next step in reform (related to Steve’s and Another Mike’s comments) is that each agency should start reviewing the info they generate for automatic publishing up on the web. Agencies producing high-value datasets or routine meeting (including committee and subcommittee meeting) minutes and notes should just put them up on the web without waiting for a FOIA. (And put them up in a natively usable form — if you are putting out financial data, put it out in a spreadsheet form, text is OK as pdf) They’d probably reduce the number of routine requests, leaving them free to deal specifically with the non-routine stuff.
There is a PIO training and knowledge gap; not sure how widespread it is. I’ve actually had a PIO send me intranet links in response to my FOIA request.
puck – Which agency? Some of the state PIOs/CROs/communications staffers are laughably awful and utterly incompetent, though things have gotten marginally better under Markell. Others are simply parrotting directives from the legal staff or the cabinet secretary’s office – it’s not necessarily the PIO’s fault. And I’m not sure many of them get FOIA training or have any formal role in FOIA processing – most FOIA requests get automatically reviewed and handled by the legal departments.
Dana – My understanding is that agencies are allowed to charge the hourly rate paid to a staffer. If a $15-an-hour secretary spends an hour copying and collating documents, then the requestor gets charged $15.
cassandra – Many agencies, boards and commissions do put up meeting minutes. The problem is that they don’t go up until a month or two after, when they’ve been screened and approved and voted on at the next meeting. So they’re virtually useless.
That’s true, anon, I was thinking more about timeliness, although the one instance I was thinking of was for someone who couldn’t find any minutes of a commission meeting. There’s no reason that draft minutes can’t be sent to the right people shortly after a meeting and voted on via email to shorten timelines.
OR then can just put up transcripts or video of the entire meeting right afterwards.
There’s no reason that draft minutes can’t be sent to the right people shortly after a meeting and voted on via email to shorten timelines.
Actually, there is. It’s called FOIA. What you propose is illegal. All votes have to be taken in public session, with proper notice given. No email votes, no teleconferences, no round-robin “discussions to get the pulse of the board.”
But there’s certainly nothing preventing a public body from posting those “draft minutes” online and labeling them as such. It’s not like they’re top-secret information. And quite a few local governments – though not as many as there should be – do webcast or post audio/video of their meetings online. Transcripts are really expensive to prepare.
OK, you have a point. Although I’d be stunned to find out that they aren’t already working out minutes details via email already.
Draft minutes with the right caveats would work. More audio and video of meetings would be better.
What kills me about this bill is the hypocrisy of the General Assembly. Even though the General Assembly is exempt from FOIA, they passed this bill strengthening FOIA laws. Then, during the press conference, without noticing the irony, and with a straight face, some senators and reps stood up and talked about why it is vital for a democracy to have open government. But not the general assembly. It’s best for everyone, if most of the doors at leg hall remain closed.
Actually, I added that last part.