DOVER — In November, the Public Integrity Commission gave Delaware an F in its state-by-by integrity grading.
The report notes Freedom of Information Act (FOIA) requests can be denied without detailed or proper reasoning. Conflicts of interest can and do pop up in the legislature and many records are not audited.
Some officials note that F-grade and strive to change statutes in an effort to make government more transparent, while others cite past developments as evidence the state is far better than the score indicates.
Regardless, many agree Delaware already has taken steps in the right direction in recent years, including removing many legislative exemptions relating to FOIA.
A spokeswoman for Gov. Jack Markell noted that legislation and an executive order with a focus on transparency and disclosure have been created since the governor took office in 2009.
“We have a never-ending responsibility to look for ways to increase government transparency and strengthen the public’s confidence in our political process,” Courtney McGregor said. “While we have more work to do, Delaware government and the people involved in politics are more accountable to the public than ever before.
“The state has achieved considerable progress in recent years by making it easier for the public to obtain government documents,
Speaker of the House Peter Schwartzkopf, D-Rehoboth Beach, believes Delaware compares well to other states when it comes to openness of government. (Delaware State News/Dave Chambers)
expanding disclosure of campaign donations and improving lobbying laws.
“These efforts included policies that were called the most ‘sweeping’ and ‘wide-ranging’ changes to FOIA since it took effect in 1977 and the first major state campaign finance reform in more than two decades. The governor is always interested in additional steps that would add transparency and accountability to the campaign finance system and government.”
In 2009, the General Assembly passed a landmark bill opening up the legislative process. Prior attempts to add transparency and grant increased access to the public consistently failed, due in part to several long-serving lawmakers who opposed the idea.
Sponsored by several of the most powerful members of the legislature, the bill made nearly all meetings public for the first time, including Joint Finance Committee hearings — a fact Rep. Melanie George Smith, D-Bear, alluded to Tuesday.
“Instead of having this conversation kind of back room, behind closed doors, we’re doing our thought process as we speak with everybody here with us,” she said, almost as an aside.
Lawmakers credit the 2009 bill for having a tremendous influence on the state.
“You go to other states and you find out just how good Delaware is, almost in every avenue,” said House Speaker Peter Schwartzkopf, D-Rehoboth Beach. “I’ve … talked to other leaders from other states on stuff and you’d be surprised at what other states do and it’s just, we get things done.
“We work together, for the most part. We get things done, and we have a very open process, and committee hearings and people testify in committee hearings. … There’s a lot of states that won’t allow anybody on the floor. They don’t let anybody in the chamber. There are no guest speakers, there are no nothing. There’s nothing like that. We do all those things.”
‘Open the blinds’
This week marks the 11th consecutive year the American Society of News Editors has hosted Sunshine Week, an initiative designed to promote open government and accountability.
Provisions relating to open government are sometimes known as sunshine laws.
“Let’s open the drapes, let’s open the blinds, let’s let light in to see kind of what’s going on behind,” said Rep. Sean Lynn, a Dover Democrat who has supported greater transparency.
Several measures currently waiting in the General Assembly would create more openness in state government, although lawmakers disagree as to whether or not the specific proposals are needed.
Rep. Sean Lynn, D-Dover, earlier this month introduced a bill that would remove a FOIA exemption for emails sent and received by lawmakers and their staff. (Submitted photo)
Rep. Lynn earlier this month introduced a bill that would remove a FOIA exemption for emails sent and received by lawmakers and their staff. The landmark 2009 bill originally included emails, but amendments added an exemption.
Opponents of his bill say that provision was needed not only to gain support for the 2009 bill but to safeguard privacy. Constituents often email lawmakers with personal concerns, including private details intended only for authorities.
Lawmakers and their aides also strategize through email, those against the recent proposal say.
“I think that that argument is nonsensical because when you are, for example, a county councilman, a Levy Court commissioner, a city councilman, you still have and deal with constituencies. So why would the privacy of our constituents outweigh the privacy of constituencies of a city councilman or a Levy Court commissioner or a county councilman?” Rep. Lynn said. “That argument is silly.”
His bill has just four co-sponsors, and even he expects it to fail. However, Rep. Lynn believes it can create a movement that could lead to opening up emails down the road.
The proposal would apply retroactively, making all emails sent through state addresses accessible. While some believe that simply would lead to more conversations being held offline, others argue that should not be a reason to oppose FOIA.
The privacy argument holds little water with co-sponsor Sen. Karen Peterson, D-Stanton.
An advocate for open government and the prime Senate supporter of the 2009 measure, she is confident any personal information easily could be redacted.
While she acknowledged FOIA laws can be abused by someone filing dozens of requests for trivial information, she believes they are a necessary tool for citizens.
Like Rep. Lynn, Sen. Peterson noted local officials are subject to all FOIA laws.
“We make the rules, so it’s do as we say, not as we do,” she said of the legislature.
The bill is in the House Administration Committee and several lawmakers predicted it will die there.
Legislation to subject the University of Delaware and Delaware State University to FOIA also met an early end in the same committee, being tabled due to lack of support.
Currently, the universities’ boards of trustees and documents relating to the use of state funds are public, but nothing else is.
For three consecutive sessions, legislation to remove that exemption has been introduced but to little avail.
“Delaware’s Freedom of Information Act has always recognized that the University of Delaware has both private and public elements to it,” university spokeswoman Andrea Boyle Tippett said last year.
UD officials believe open records laws could hinder efforts to raise funds and protect research. DSU previously declined to comment on the matter.
Rep. Kimberly Williams, D-Newport, has sponsored a bill that would allow public comments at “any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel or council.”
Rep. Kimberly Williams, D-Newport, has a bill that would allow public comments at “any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel or council.”
Currently, some meetings, including legislative committee gatherings, do allow for public comments, but they are generally up to the discretion of the chair.
Rep. Williams said the impetus came from a health care task force she attended and was unable to speak at. The task force held separate hearings for people to present their concerns and ideas.
“I want the public to be able to have a comment or express concerns,” she said. “It’s public, which could be an organization or just a member of the public or anyone that really could say something that make you really think about something that you’re doing. I know I’ve had people comment and I would say, ‘I’ve never thought about that like that.’ And it’s a good way to let people know that we are interested in them participating in our government and we’re very interested to hear what they have to say. So I just think it’s important. We want people to be involved.”
The legislation would not apply to votes or the floor of the House or Senate, she said.
‘Accountable to the people’
Watchdog groups like Common Cause Delaware and the Delaware Coalition For Open Government are in favor of more transparency.
John Flaherty, lobbyist for the coalition, said the state has made strides in recent years but still has work to do, as evidenced by the Committee for Public Integrity’s report.
He supports the legislation filed by Reps. Lynn and Williams, believing an effective government must be accountable to its citizens and taxpayers.
“Emails are public documents and we should have a right to inspect emails to find out how government is operating,” he said.
For him, the need for further changes does not end with the legislative branch.
The Senate passed a bill to open up Family Court proceedings, including divorces, property divisions and alimony hearings, although the court would be able to make some private if they meet certain criteria.
Mr. Flaherty noted the state constitution says “All courts shall be open,” and he believes more proceedings within the legal system should be public.
“Government is supposed to be accountable to the people and the people can’t hold their representatives accountable if they can’t know what’s going on,” said Claire Snyder-Hall, lobbyist with Common Cause Delaware.
In 2014, the General Assembly passed legislation preventing lawmakers from becoming lobbyists until one year after leaving office — with a catch. An amendment pushed the effective date pushed back two years, meaning the waiting period still has not begun.
The bill goes into effect Jan. 1.
Today, some members of the General Assembly differ on their views of the legislature’s openness.
“Here in Delaware, the mentality seems to be it’s private unless you can prove it’s public information,” Sen. Peterson said.
But the leading member of the House disagrees.
“The one thing that really bothers me sometimes is to hear people, you know, like on the radio or somewhere, say all these things are being done in back rooms with doors closed, and I’m like, ‘that’s not happening,’” Rep. Schwartzkopf said. “We have our necessary conversation for caucus, but that’s just to discuss bills and things like that. Back-room deals, there’s none of that going on.
“I just wish people would come here, watch the operation, see how we do things and they would have a better understanding of how we run this place.”