Updated, 1:23pm, June 10th: Senate Bill 155 has been pulled from the Delaware Senate Agenda and will not get a vote today.
Senate Bill #155 is on the ready list for the Delaware Senate tomorrow. This very atrocious bill undermines the spirit of the Freedom of Investigation Act and serves no other purpose than to protect public bodies who want to keep things hidden from public consumption. My issue with the bill is this section:
It amends the examination and copying of public records provisions of FOIA to alleviate the significant time, resources, and financial burdens imposed on public bodies by FOIA requests that are unreasonable, disruptive, or abusive. This Act allows a public body to deny a request from a requestor whose intent is to disrupt the essential functions of the public body or abuse the process and allows a public body to charge administrative fees for all reviews, including the review and redaction of information exempt from FOIA. The review and redaction of information is often performed by non-attorney staff in conjunction with necessary review for exceptions and exclusions.
The most disturbing part is the revelation that redactions are performed by non-attorney staff. Which means public bodies have always had the ability to redact information as they see fit. That isn’t a freedom of information. That is cherry-picking what you want the public to see.
Who determines a requestor’s intent? If the public body is doing things that are not essential functions and someone wants to make this publicly known you better believe that public body is going to deny the request. The assumption that public bodies are innocent 100% of the time is blatantly false. Which is a huge part of why FOIA law exists in the first place.
Administrative fees. Some already charge those fees. I filed a petition against the Delaware Department of Education in 2015. Attorney General Matt Denn’s office ruled the DOE grossly overcharged their administrative fees in my FOIA request. Who determines what a proper rate is?
The lead sponsor of this bill, Senator Kyle Evans Gay, leads the committee that is allowing the bill for a vote. In an opinion letter published in today’s News Journal, the Senate Education Committee was accused of violating FOIA by not posting their committee meeting in the designated time-frame. Senate Bill 130, which involves allowing public school coaches to coach student athletes for pay during off-season time, is also sponsored by Senator Gay. How can a Senator so callously destroy the fabric of FOIA with one Senate Bill while allowing a FOIA violation on another bill of hers? This is not what FOIA is about Senator Gay. Whoever is pushing you on this definitely got to you. But the kicker is the fact it was scheduled this during a time when you knew the Public Integrity Commission (PIC) wouldn’t be able to make it, as written in the News Journal opinion letter:
The PIC attempted to participate in the state Senate Legislative Oversight & Sunset Committee’s meeting on SB 130, which was held on May 18. However, the meeting notice and agenda were not posted on the General Assembly’s website until approximately one hour before its unusual scheduling on a Tuesday, rather than the standing Wednesday meeting. In addition to the lack of meaningful notice, the meeting was scheduled on the same day and time as our monthly Commission meeting, precluding our ability to participate.
That is just dirty politics Senator Gay. Allowing your bill to come before a committee during a time when you know the chief opposition to it won’t be able to attend is not just bad form, it is shady beyond belief.
And for the record, I definitely agree with the Public Integrity Commission on the absolute favoritism that will occur if Senate Bill 130 passes. It will definitely give an unfair advantage to Delaware student athletes who cannot afford off-season coaching.
The PIC issued an opinion on this matter in 2003. The Delaware General Assembly wants to overturn that ruling now. Why now? So coaches can get more money. But the consequences are obvious as the PIC Chair Andrew Manus wrote in his opinion letter:
The reasoning behind the decision was that paying a school coach for extra coaching sessions may lead a coach to favor those students at the expense of those who cannot afford such luxuries.
All the sponsors on Senate Bill 130 are Democrats. Some of which I believed were Progressive in their thoughts. In addition, all the FOIA destroyers on Senate Bill 155 are Democrats. What are they thinking? Do they not believe in transparency? Do they not realize the damage they are doing to public trust with both of these bills?
I urge every single Delawarean to email your State Rep and State Senator and urge them to vote NO on both of these bills. Senate Bill 130 is not up for a vote yet but that should not dissuade you from contacting your elected officials. Senate Bill 155 will get a vote tomorrow. Even with Senator Gay’s amendment dictating the public body must give a reason to deny a FOIA request it is still a recipe for corruption and fraud by the public.
Delaware is well-known for being horrible with transparency and violating the public trust. Are we going to allow our legislators to further erode that trust? I have never met Senator Gay and I don’t know much about her. But I don’t like these two bills at all. They both harken to a time that any true Democrat should be long past. We are better than this Senator Gay and I urge you to pull both these bills and table them. SB 130 is a special interest bill, lobbied by the DIAA to get coaches more money. SB 155 is a despicable and ugly bill. You can do better than this Senator Gay. And so can the rest of your Senate colleagues by voting NO on SB 155.