On October 7th, the Delaware Pathways Steering Committee held their first meeting with no public notice or an agenda put up 7 days prior to the meeting as required by Delaware state code. In August, Delaware Governor Jack Markell issued an Executive Order creating this public body. The only reason I found out about it was due to tweets from the Rodel Foundation and Mark Brainard of Delaware Tech. I promptly filed a FOIA complaint on October 11th. Seventeen days later, the Delaware Attorney General’s office has already responded to the FOIA complaint. To put this in perspective, I filed a FOIA complaint last March which just had the Attorney General opinion issued last week. BI submitted another FOIA complaint around that same time period and there has been no official opinion released from the Attorney General’s office. But Alison May from the Delaware DOE did respond in record time with their side of the complaint, but she has before. So why was this FOIA complaint rushed?
Below is my original request, the acknowledgment from the Attorney General’s office, the Delaware DOE’s response to the complaint, and the opinion on the FOIA complaint issued today. As well, I am including an email that was still in draft form disputing the facts provided by Alison May in the Delaware DOE’s response. I truly believed I had more time given the turnaround time on FOIA complaints coming out of the AG’s office but this one had a lightning fast response. Given the below findings and other inconsistencies with their opinion, I believe this was a very rushed job they wanted to put to bed fast. But that opens up a whole other can of worms…
Original FOIA Complaint, issued 10/11/16
From: Kevin Ohlandt [mailto:firstname.lastname@example.org]
Sent: Tuesday, October 11, 2016 9:23 AM
To: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
Subject: FOIA Complaint
I am submitting a FOIA complaint in regards to the newly created Pathways Steering Committee. This body came out of Executive Order #61, issued by Governor Markell on Thursday, August 11th, 2016. While there was nothing anywhere indicating they were holding a meeting, tweets appeared on October 7th suggesting the body met as a group. This is a state group, created by an elected official. Yet there was no posting of the meeting or an agenda. Attached are screen shots of the tweets posted by Mark Brainard and the Rodel Foundation of Delaware.
I take this violation very seriously. For a group that is supposed to be all about students, I find it ironic they would operate in secrecy with no ability for the public to attend. This does not translate into anything close to an open government.
9 Crosley Court
Dover, DE 19904
On October 12th, the Delaware Attorney General acknowledged receipt of my FOIA Complaint
October 11, 2016 Correspondence Regarding the Pathways to Prosperity Steering Committee
Mr. Kevin Ohlandt
9 Crosley Ct.
Dover, DE 19904
RE: October 11, 2016 Correspondence Regarding the Pathways to Prosperity Steering Committee
Dear Mr. Ohlandt:
This will acknowledge receipt of your correspondence regarding the Pathways to Prosperity Steering Committee (the “Committee”), received on October 11, 2016, alleging certain violations of the open meetings provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a petition for determination pursuant to 29 Del. C. § 10005. We are forwarding your correspondence to the Committee’s counsel, asking that they respond to your allegations by October 19, 2016. When we have received the Committee’s response, we will determine whether additional information from either party is required and decide what further action, if any, is appropriate.
Very truly yours,
/s/ Kim Siegel
cc: Danielle Gibbs, Chief Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
Meredith S. Tweedie, Esq. (via email)
The Delaware Department of Education’s Response to the FOIA Complaint, 10/19/16
Issued today was the official opinion from the Delaware Attorney General’s office:
16-IB23 10/28/2016 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Pathways to Prosperity Steering Committee
This is the draft I was working on to send to the Attorney General’s office that I believed I had more time to formulate:
October 26th, 2016
Good afternoon Ms. Siegel,
In reviewing Alison May from the Dept. of Education’s response to my FOIA complaint from October 11th, in the letter provided from her on October 19th, she states the following:
…and the draft minutes of the October 7th meeting (attached hereto, along with the other documents discussed at the meeting) will be posted online by the end of this week.
The DOE provided no explanation as to why the notices and agendas were posted less than seven days in advance of the meetings, and it concedes that the postings did not comply with FOIA. The DOE also explained that no action was taken by the AFWG at either meeting. The DOE apologized and said it would “endeavor to determine the agenda of any future AFWG meetings as of the time of any required public notice of them, and include the agenda in any such required notice.
By letters dated July 31 and August 1, 2012, the Governor extended invitations to a number of individuals to participate in the Working Group as representatives of several public bodies, including the General Assembly, the Department of Education and the State Board of Education, and various private stakeholder groups (the “Invitations”).
On June 10, 2013, you filed this appeal seeking access to the Working Group’s meeting minutes. We received a response on July 11, 2013. The response indicates that the Working Group did not consider itself to be a “public body” within the meaning of section 10002(h), due primarily to the informal nature of the Working Group.
FOIA, with certain exceptions not relevant here, establishes a public right to inspect all “public records” and requires that all meetings of public bodies be open to the public.4 FOIA’s “open meeting” provisions call for advance notice to the public of all public meetings and require public bodies to prepare and make available to the public agendas for and minutes of their public meetings.5
Section 10002(h) provides substantial guidance as to the types of entities and bodies encompassed within the phrase “body of the State.” That concept, as used in FOIA, includes, among other things, any “group . . . appointed by any . . . public official of the State” that was “impliedly or specifically charged” with making recommendations.9 The Working Group was a “body of the State” within the meaning of section 10002(h).
But the key part from this opinion rests on the following and is key to my own FOIA complaint:
First, this Office consistently has rejected arguments that FOIA’s applicability hinges on adherence to formalities in the creation of a public body, lest FOIA’s goals of openness and government accountability be subverted.14
This was where my draft ended which I fully intended on doing further research on in the next week.
Now here are my issues with the Attorney General’s response to the FOIA complaint. First off, in Alison May’s response from the Delaware DOE, she said it was under the Delaware Dept. of Education’s control to issue the agenda. However, in the link on the FOIA complaint, we see an Agenda created on 10/17/16, ten days after the meeting, and it was issued from Governor Markell’s office, not the Delaware DOE. Furthermore, if this was indeed a public body, why was there no agenda item for public comment? As well, the minutes submitted by Alison May in the DOE’s response to the FOIA complaint are actually different than those that appear on the Googledrive website.
In the original minutes, submitted with Alison May in the Delaware DOE response to my FOIA complaint, it states the following:
Dr. Brainard charged Mr. Rhine to conduct outreach to Steering Committee members to review the draft strategic plan and collect additional input;
Dr. Brainard charged Mr. Rhine to develop a transition report for partnering state agencies to be used as a transitional tool in planning for the next executive administration;
Mr. Rhine will conduct outreach to Steering Committee members to review the draft strategic plan and collect additional input;Mr. Rhine will develop a transition report for partnering state agencies to be used as a transitional tool in planning for the next executive administration;
Moreover, as you note in your Petition, certain members of the Committee published photographs of its meeting on social media either, contemporaneously or immediately following the meeting. We find this to be inconsistent with an intentional failure to adhere to FOIA’s open meetings provisions. We see no evidence of an intent – by the Governor or any other Committee member – to circumvent FOIA. Nor do we see an ongoing pattern of FOIA non-compliance which might warrant extreme remedy.
Here is a newsflash for the Attorney General’s office: having a non-profit foundation and a member of the committee post tweets about a non-transparent meeting of a public body issued by a Governor’s Executive Order, does not point either way towards an intentional failure to adhere to FOIA’s open meetings provisions. What it shows is someone tweeting. So to give this extra bearing in a legal opinion about something that was already established to be under the Delaware Dept. of Education’s responsibility is misleading at best.