Contrary To Popular Belief: FOIA’s Are NOT Free

Elizabeth Scheinberg with Children & Educators First asked me to repost an article she wrote yesterday.  This is in response to Transparent Christina’s post last week about John Young’s FOIA petition.

Red Font/bolding is for emphasis.

TransparentChristina has shared some posts about a recent CSD FOIA with no comment mechanism.  It’s a tactic we often see associated with political bullies, a markellian method to stifle public discourse.
  
So, let’s have at it: FOIA is NOT Free. I disagree with TC.  I wasn’t present at the meeting and didn’t hear the public comment.  However, I can offer a rebuttal on generalities:

FOIA is a fantastic tenet of our democracy. With little exclusion, FOIA creates a lens for the public to look through and evaluate the performance of both elected and appointed officials. It is invaluable. But, it does come with a price tag. 

A recent CSD FOIA ran the district upwards of $3000.00.  Not a lot when compared to the budget of that beast, but significant enough to those who care.  I care. CSD is in a financial crisis.  And while I love FOIA (and I really, really do) I can’t justify what my district was forced to expend to satisfy a malicious and mostly frivolous FOIA. (Already noted in a previous post that 1 facet of the FOIA was conceded to by CSD; as for the other two issues, the DOJ found for the board, not the complainant.)

Forced to respond?

Yes, TC contends that “the public body has to DECIDE whether to respond via counsel to the allegation.”  That’s true on face value. But, only on face value. The body could choose to ignore that notification and request for evidence sent by the Department of Justice.  This will produce two outcomes, neither preferable to the engaged constituent:

  1. First, the body runs the risk of creating a public perception that it is above the law, above even the Department of Justice.  This route will tarnish the body’s public perception = a public less willing to support it.
  2. The body run the risk the FOIA opinion will be founded on whatever evidence the complainant provides – legitimate or fraudulent. I had the pleasure of communicating with the Department of Justice this past week. The department was most helpful in explaining what happens when the subject of FOIA does not respond to the DOJ’s inquiry.
    DOJ’s explanation:

     “opinions will be based on the evidence available.”

    Refusal of the body to participate = radical neglect that defeats the entire judicial process around FOIA.  It impugns the SPIRIT of FOIA! And leaves it open for manipulation because the only “evidence” provided will be that of the complainant.   

The COST of FOIA:
 
Moreover, regardless of the body’s decision to respond or not, the FOIA has already begun to cost tax payers’ dollars. How? When the FOIA petition reaches the DOJ, the department is obligated to assign an attorney to investigate the allegations. The hours consumed by the investigation of the petition and research into both the application of the law in the past and present and the evidence presented drain resources (financial and manpower) that could be dedicated to a host of other investigations occurring within the department. While the DOJ may budget funds to a FOIA department, the absences of a current petition does not mean that department personnel are idle.  It is fair to say their talents are used elsewhere within the department. The cost clock is ticking.  

Thus, the Outcome of the body not responding does not mean FOIA is FREE.  There is still a cost born by the tax payers – the cost of DOJ’s investigation is supported by tax payer provided funds!

Superfluous FIOA and Malicious Intent:

I’ve written my fair share of FOIA over the years.  It’s a necessary process and a right guaranteed by our democracy.  It holds public bodies accountable for their collective and individual actions.  However, it can also be abused. In the case of the Christina FOIA, there has been a limited dialogue and deep misunderstanding propagated by those who wish to claim winner-ship of the FOIA.

The petition stated 

Based on these 2 concerns in combination, I am asking for clarification of the previous FOIA opinion in order to ensure the CSD BOE acted properly. It is my ardent hope that we did so, but I feel we need to confirm this in light of the Appoquinimink FOIA opinion. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/

It appears the petitioner is acting in the best interest of the pubic body. However, in the comment section of this post, the petitioner goes on to make this accusation:

…Board members need to understand their roles and those that withhold information from others simply impede the governance necessary to help children. Worse, others don’t seem to take past experience in governance and apply the positive parts while discarding the negative. I’m not speaking of any single member, but some about all.
It’s a disease, and I think I know how you feel about those that flout the FOIA statute and act to secretly traffic information that board members need to make informed decisions. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/

And there you have it: That this petition provided clarification to the petitioner on several fairly recent FOIA opinions issued by the DOJ was secondary to the petitioner’s assertation that his fellow board members failed to learn from past experience and more importantly that they “secretly traffic information” to eachother. The DOJ opinion essential deems this malicious accusation to be unfounded.  It did not opine of any secret or otherwise information trafficked between the body’s members.

This was a superfluous and malicious filing. Had the body voted to ignore the Department of Justice’s communication, the body would have lost its opportunity to provide widely important exculpatory evidence and the finding might have been radically erroneous. 

FOIA IS NOT FREE.  And while it is open for abuse, the thoughtful and correct course is for a body to respond always.  It is only way to reach a unbiased finding based on evidence and law.

And if someone is telling you otherwise, they probably have oceanfront property in Tennessee to sell you too.

22 thoughts on “Contrary To Popular Belief: FOIA’s Are NOT Free

  1. With all due respect, you are assuming the petitioner acted out of malicious intent. Based on what was submitted, especially in light of the Appoquinimink FOIA, as well as my own FOIA petitions of light, I believe the petitioner was acting in the best interest of preserving the integrity of the board. Had the petitioner not intervened when he had, there could have easily been a more egregious action taking place in the future, that could have cost the district much more than $3,000.00. I believe you will see something along these lines playing out fairly soon elsewhere. So the DOJ found that only one out of the three were a violation. The fact remains there was a violation. I stand with the petitioner in this situation.

    Liked by 1 person

  2. Kevin, I like your rebuttal. I disagree on intent. The petition was finely written, very demure. A true gentleman’s request. However, the petitioner betrayed his true intent in his own writings on the topic. He accused his body of secreting information from the public. The DOJ findings did not support that accusation.

    If we are really fleshing out FOIA, we need to examine intent in general. The intent of the writer, the intent of the public body. Imagine, a crackpot files a FOIA accusing the governor of secreting intelligence to aliens. Now, the governor refuses to respond to the DOJ b/c the accusation is ludicrous. What happens when the DOJ sides with the crackpot based on the only evidence available? The assertion that a body could choose not to respond to the DOJ, and that the FOIA process itself is free, is illegitimate.

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    • Your X-Files comparison to a legitimate request is apples and oranges. There is a world of difference (or worlds depending how you want to look at it). It sounds more like the petitioner may have had a reason why he may not be able to trust his board 100%. With the stake of thousands of children, nothing should be left to chance.

      Liked by 1 person

  3. The process is free as there is nothing compelling the response. The AG can opine without a response from the district and one could argue if the district’s case is so obviously compelling on its own, why waste money on responding?

    Altogether different than being denied the opportunity to authorize a response by misguided hubris and fiat. Better to leave that there though I surmise.

    Sadly, Ms. Scheinberg has sunk to a new low in impugning my motives. She ought to know, better than most, that FOIA protects the public. How convenient that her transparent screed of lies conveniently ignores the adverse finding on an illegal vote in executive and that I am sincerely thrilled that the behavior around public notification and less than 6 hours notice on a $743/day contract is now protected somewhat by this legal opinion. The other issue was to gain clarification on a previous AG FOIA opinion that the BOE could not provide, under any circumstance. One of my roles as a taxpayer is to ensure the public body operates within the law. It feels like Ms. Scheinberg values last minute contracts and has no concern for the public’s access to discussions about the superintendent. She also seems oblivious to illegal executive session voting as well. Maybe I misread her piece conveniently not published on her own blog, but here, where the hits are.

    The facts of the case are the public was denied access to the contract we voted on until a VERY short time before the meeting itself. The facts are that the meeting was held to start late so a 4th vote could be summoned to the venue. It was a truly disgusting display that I, not Ms. Scheinberg had to bear witness to. The facts are the BOE held an illegal vote in executive session.

    I understand protecting friends, but if she only knew…wait a minute….$3000?….wonder where that number comes from…special access has privileges I see…

    The AG employees are 100% paid for their work and FOIA response and investigation is normal course for the department.

    It’s not only popular, it’s true: FOIA is FREE. 100% FREE. Ms. Scheinberg’s assertion to the contrary appears to be a thinly veiled attempt to shame and bully the filer. That quite a dose of hypocrisy given her past.

    I can only hope Ms. Scheinberg attends our very next public session to address the board about our legal expenditures. I would very much like to have that conversation in public with her. She, and the Christina community, has the right to know the truth too!

    The truth is I was absolutely thrilled by the rulings, all 3 of them. They are protection. They are accountability. There was no malicious intent. At any time. That Ms. Scheinberg cannot or will not see or accept that is her problem, not mine.

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    • 1. My evaluation of the situation does not ignore the conceded point where the board erred in voting during the executive. I dedicated an entire post to that particular issue and the dubious meaning behind it – where does executive privilege begin and end?

      2. Going back to motive, the petitioner continues to impugn the body, attacking what he sees as “misguided hubris.” It isn’t. The body was charged by the DOJ, through the petitioner to respond with evidence. It did.

      And the accusations keep coming with a new story of a delayed meeting held for the purpose of a fourth vote? This the foundation for the complaint, yet, none of this was ever discharged to the DOJ. Nor did the DOJ find that any contracts were denied from the public.

      3. Here, where the hits are? It is conveniently published on my own blog. I asked Kevin to share it b.c. I seldom blog and felt that this topic deserved a true forum for debate.

      4. I continue to wonder why the petition was submitted after the board meetings when FOIA creates a clear path for presumptive filing – the public can request an opinion prior to a potential commission of error. Yet, the petitioner refused that route, in what appears to be a game of “gotcha.” Intent.

      5. Special access to privilege? None exists. Legal costs are FOIA-able. There were no protections violated.

      6. My past? I have nothing to be ashamed of. I have filed successful FOIA petitions. I know the process intimately which is why I felt obligated to rebutt the assertion that FOIA is FREE. It is not.

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      • 3 board members stayed off stage in a group for nearly 20 minutes past the scheduled start time. Mr. Polaski called Mr. Evans and then came out onto the stage to report and declare, and I quote, “Mr Evans is on his way, he forgot.” All of that in public space.

        There was one action item, that, as it turned out, paid the super $743/day ($193,180/yr prorated) and it only got 4 votes. There are multiple witnesses to this action.

        I sat in my assigned board seat, on time, ready to convene the meeting as scheduled.

        While the ability to file a presumptive FOIA is clear, I had no way of knowing about the vote until it happened at the meeting, nor could I predict the extremely late manipulations/iterations of the contract less than 6 hours before vote. Again, two points you seem to just be A-OK with…for some reason that honestly can’t be seen plainly which is what causes concern for some. It makes me wonder if you think I lack standing to file FOIA or that filing FOIA is a right taxpayers should not possess.

        Please come to discuss legal fees. Please. In public.

        As for your #5, did you FOIA for them? Nope…major hypocrisy coming from your source regarding “sanctity” of “private” information. Par for the course,though you are correct, they are fully public information. Particularly the part where they were spent absent a board authorization…which was requested, and denied.

        Thank goodness FOIA remains 100% FREE. I will not succumb to the bullying and shaming campaign designed to sideline CSD taxpayers from holding their board accountable. As I see it, three important questions were asked, three GREAT answers were given. The board acted within the law on 2 of 3 concerns and has promises to never commit the third violation (illegal vote). A great day for transparency and accountability. I could not be happier with the opinion.

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  4. You are such a pleasure to debate. However, I think your are projecting the qualities you ascribe to me.

    Again, it’s a new story to justify the FOIA. Yet, the story never makes it into the FOIA. And the DOJ weighed the evidence provided by both sides.

    As I delve into Kevin’s story on Brandywine, I understand that the DOJ found against Brandywine b/c its board voted by assent or lack assent during executive session to not address the parents’ request. Are you saying that essentially CSD did the same? Firstly, did the board conduct business outside public session wherein it was moved to bring the issue of a response to vote? And secondly, did that body either assent or not assent to the motion?

    Maybe I’m missing something, I just don’t see this issue addressed in the public record? And if I am simply oblivious to it, please show me where I can study it.

    In reflecting the other concern, the contract, the super is receiving $743/day. Certainly more than me. But, what is Dr. Williams daily prorated rate after perks and benefits? Is it comparable?

    I, too, am thrilled by this FOIA, but more for the opportunities to discuss its impact. As you well know, FOIA is cumulative in our state and each small finding is but a piece of a much more intricate network of knowledge.

    Imagine this, we’re all winners all around.

    Liked by 1 person

      • Ok. from inferences over a period of time, now coming into focus is that 3 of the board members are colluding against the board itself, forming a clique and through use of trickery & slick parliamentary tactics, they are trying to manipulate final votes without the normality of first bringing them up for open and public discussion beforehand?

        Which implies they are pushing an unpopular agenda, completely unsupported by the public; they must keep it secret and are trying to get it passed with a minimum of discussion.

        Is that close to what you cannot say?

        Liked by 1 person

  5. Mr. Young, you avoided all the questions.

    A secret vote?

    Dr. Williams’ daily prorated pay?

    If I believe Kavips’ X-files theory, then you are obligated by your oath to expose those who are colluding against the public. And that was the underlying intent of the FOIA? Because, once again, none of this makes it into the FOIA and even you are pleased by the results, pleased that the new super’s contract, that you have railed against, is protected as you show above.

    Yep, We are all winners, all the way around.

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  6. DR Williams’ pay is exactly the same. He was hired into a nearly 17K district. We have shed 2K in students. Dr. A is acting. Are you suggesting same salary is reasonable? How about $156K/year or $600/day for a caretaker.acting role?

    Never suggested collusion. I am saying that board leadership flat out kept the salary out of the contract until less than 3 hours before the vote? Did they feel the public w916ould react harshly? No valid reason I can see. Dirty pool, plain and simple. This isn’t a theoretical. This is what happened. Straight up. Emails to prove it.

    Outside of the agenda posting, it was dirty pool. The kind you dedicated yourself to destroying for 3.9166666 years of your 4 year term.

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  7. DR Williams’ pay is exactly the same. He was hired into a nearly 17K district. We have shed 2K in students. Dr. A is acting. Are you suggesting same salary is reasonable? How about $156K/year or $600/day for a caretaker.acting role?

    Never suggested collusion. I am saying that board leadership flat out kept the salary out of the contract until less than 3 hours before the vote? Did they feel the public would react harshly? No valid reason I can see. Dirty pool, plain and simple. This isn’t a theoretical. This is what happened. Straight up. Emails to prove it.

    Outside of the agenda posting, it was dirty pool. The kind you dedicated yourself to destroying for 3.9166666 years of your 4 year term.

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    • Mr. Young, thank you for finally providing a basis of comparison for the interim supers’ pay grade. The justification is interesting.
      Are you suggesting that a supers’ pay should be commensurate withe number of enrolled students in a district? Did you argue this point during the public session? Was Dr. Williams’ pay ever reduced/prorated to reflect the decreased enrollment? Do the problems facing Christina decrease with the loss of students? I would hazard to guess…no.

      While I personally believe that many in CSD and in education in general are overpaid, I also acknowledge that we are paying Dr. A. to mind the district through a political mine field. The needs of the district were not reduced by the reduction in enrollment. If anything, the crisis increased.

      I also acknowledge that it was unfortunate that Dr. A.’s pay rate was not available sooner. It would have been lovely. But, that’s the nature of negotiations. And it appears that he is a swell negotiator. And the DOJ is okay with this.

      I am reminded of board meeting in the distant past, where two board members blindsided the body and put the hiring of a new superintendent into play with literally 30 minutes of notice to the fellow board mates. And in doing so, defied the agenda and gave the public no advance notice. Hired by the board before a contract could be negotiated. Only later mitigated by a symbolic re-vote to avoid a FOIA opinion.

      None are without sin, Mr. Young. Not even you. And certainly not me, according to the calculations you assign me.

      I end on this note – None of this made it into the FOIA-that-just-keeps-giving. Be proud Mr. Young, you single-handedly protected Dr. A.’s pay rate from dissolution.

      FOIA is not free. And this one just keeps charging away.

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  8. The notion of pay relative to size of district and the idea of being in fiscal crisis was discussed in public. Additionally, an internal appointment would have provided substantial savings and prevented what will undoubtedly be the basis for fiscal responsibility attacks against the BOE during the upcoming referendum.

    What negotiations are you referring to with Dr. Andrzejewski? The one with board leadership with no direct authorization, or the one with the actual board…that didn’t happen?

    Another question, in general, not specific to CSD, do you think school superintendents should A) visit the schools and staffs they oversee or B) visit consultants and outside constituents?

    Thank goodness the free FOIA complaint process is available to taxpayers and protected from those seeking to protect friends and bully citizens.

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    • Mr. Young, none of this is relevant to the FOIA, unless you’d now like to admit your intentions were malicious. You clearly want to punish members of the body for what you perceive to be a sin against the public.

      Having been involved with similar negotiations, I am fairly certain that board members did not personally negotiate Dr. A’s pay. That would have been a matter left to the lawyers. I would bet that even Evan’s didn’t have a hand in this one. Negotiating through attorneys is pretty standard when you reach this level of professionalism.

      I’m pleased that y’all talked about the fiscal crisis and pay relative to enrollment at the meeting. But, if you were concerned about how much a superintendent makes, why didn’t you raise this issue sooner? When did you broach the board about renegotiating Dr. Williams’ contract in light of the falling enrollment?

      I also don’t see how hiring from within, in this situation, would have benefited my district. I can’t think of a competent candidate with the referendum experience that CSD needs that isn’t already tarnished by the past two failures.

      Yes, do I think supers should visit their schools. And Dr. A. is. As well, he should meet with consultants. The district is involved in a number of initiatives and I am pretty certain that means interacting with consultants. And I think he should bring initiatives to the board, to weigh and consider, as he recently did. The education environment is changing daily, CSD must be poised to act when something comes along that might benefit the students. It has been frozen in inertia for too long.

      Again, you are projecting the qualities you assign to me. You want to meet a bully, look in the mirror.

      Like

        • Ahhh, the FOIA-that-just-keeps-giving…
          Is this code for “the debate is over?”

          Your obfuscation notwithstanding, I think I’ve made a convincing point. FOIA is not free. And for all the stories, the excuses, your evidence, that you never cited in the FOIA and you’ve freely discharged here… let me put it this way – No one prevented you as a board member from motioning in public session to instruct the attorneys to not defend the FOIA. No one, but you. By your own admission or rather, lack of answer to the question. You.

          Guess we aren’t all winners after all.

          Like

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