Governor Carney’s Office Cites “Executive Privilege” With Family Services Cabinet Council FOIA Complaint

The Delaware Attorney General’s office released a Freedom of Information Act legal opinion today giving Delaware Governor Carney the right to use executive privilege for a council designed to improve family services in Delaware.  In other words, they are allowed to hold non-public meetings and invite whomever they choose with no one the wiser.  The Attorney General’s office agreed with Carney’s office because of a very bad “separation of powers” clause in state law.

I filed this complaint against Carney’s office three months ago.  I noticed Carney announced attending the first meeting on his public calendar but noted it was closed to the press, thus to the public.  In February, Carney created Executive Order #5 which brought the council back.  When I noted on this very blog about his attendance at the first meeting but it was closed to the press, Carney rescinded E.O. #5 and created E.O. #9 which had very few changes but the notable exception of the public not being allowed to attend these meetings.  I filed a FOIA complaint because E.O. #5 did not mention this fact and Carney changed the E.O. after the first meeting and attention was drawn to it.

On May 22nd, Carney’s legal counsel, Chris Johnson, responded to my complaint and said Carney’s decision was legal and based on Executive Privilege.  I understood HOW it was legal, but I by no means agree with it.  Furthermore, Johnson’s arrogance in dealing with this response was one for the record books.

Moreover, in the interest of transparency, we wish to advise the Attorney General and Mr. Ohlandt that if the Council is required to conduct meetings in public, the Governor expects to withdraw Executive Order Nine and to continue meeting with members of his cabinet to discuss the same goals as Executive Order Nine describes.

In other words, we are calling this the Family Services Cabinet Council but it isn’t.  It is just another group of Cabinet level Secretaries meeting in secret with zero transparency and no accountability.  So what was up with all the bragging by Carney calling this the Family Services Cabinet Council if it was just the same thing that has always happened?  It was a campaign promise and a press release, designed to make the Delaware public think he was doing something good.  But all along, he had no intention of making this a public forum.  Because God forbid the public knows what is going on with policy at the highest level.

Take last week for example.  The Family Services Cabinet Council met last week.  The very next day, Carney is having a secret meeting with two members of the Christina Board of Education to discuss an Early Childhood Super School in Christina School District.  Gee, I wonder who brought up that bright idea?  We will never know since there are no public minutes and zero accountability for this Council.  Hell, Rodel or Delaware CAN could be leading each meeting.  These are the kind of places where the big decisions are made and the rest just trickles down: legislation, policy, regulations, committees, task forces, etc.  At least Markell lied and said “sunshine is the best disinfectant”.  Carney just seems to throw the transparency word around but he doesn’t really mean it.  More of the same, but almost worse.

So even though the Attorney General’s office sees Carney’s Council as a “body of one“, created by the Governor, they did agree that should this “body of one” expand its membership (which the Executive Orders state Carney can do at any time) it could then become a public body.  So if anyone aside from Cabinet Secretaries attends any of these meetings, rendering the “body of one” argument invalid, that is a FOIA violation.  But how would anyone know since they are private meetings?  They wouldn’t and Carney knows that.  These are nothing more than glorified staff meetings which even the AG’s office states in the below opinion.

This is exactly where Governor Carney is failing in his campaign promises to offer more transparency in state government.  I get that the private sector couldn’t possibly be expected to have board meetings or staff meetings public.  But this is state government.  Yes, they should allow the public to see and know every single decision that is made.  The citizens of Delaware are their Board of Directors, not the Governor.  That is where Carney will fail and why an erosion of trust will overshadow the good he does.

Updated, 4:40pm: Did the Attorney General’s Office ask Carney’s office if anyone other than Cabinet Secretaries attended any of these meetings?  I did not see any indication of that in the response from Carney’s office or the legal opinion.

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