FOIA Violation

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:kevino3670@yahoo.com]
Sent: Tuesday, October 11, 2016 9:23 AM
To: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
Subject: FOIA Complaint

Good morning,

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.

Thank you,

Kevin Ohlandt

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

OpenGovernment (DOJ) <OpenGovernment@state.de.us>
Oct 12 at 9:33 AM

To

Kevin Ohlandt

CC

October 12, 2016

VIA EMAIL

Mr. Kevin Ohlandt

9 Crosley Ct.
Dover, DE 19904
kevino@yahoo.com

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

Kim Siegel

FOIA Coordinator

KS/ks

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

View this document on Scribd

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

View this document on Scribd

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.

In doing an extensive search this afternoon, I have not been able to see anywhere in the State of Delaware, on the Delawarepathways.org website, or any such place on the World Wide Web where Alison May’s assurance of transparency actually took place.

This attempt at a good-faith effort on the Dept. of Education’s response to the complaint seems a bit odd considering this does not exist. And while I know the Governor is not obligated to publicly report on where he speaks publicly, the fact that no documentation exists anywhere in regards to this meeting on the internet aside from I wrote about it on Exceptional Delaware and a few tweets from those associated with this group, I find that to be very suspect. While Ms. May states “this was an oversight on the part of the involved State agencies and organizations and not an intentional effort to circumvent FOIA requirements” in her response, the very minutes she attached to the DOE’s response indicate Luke Rhine from the Department of Education would be in charge of coordinating staffing. And since Alison May from the Dept. of Education was the responding party for the response to the complaint, that leads me to the belief that the Delaware Dept. of Education would have been the State Agency to fulfill FOIA requirements for a public body. Since they did not, I take issue with Ms. May’s response about not coordinating with other state agencies and do not believe that to be a true statement. In regards to the reasoning for not making this meeting public to the citizens of Delaware, a statement of “oversight” bears little meaning in the contextual framework of following state code.

In a prior FOIA complaint of mine against the Delaware Dept. of Education, #15-IB12, Danielle Gibbs, the Chief Deputy Attorney General wrote:

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.

The notices and agendas for the AFWG meetings held in September violated FOIA because they were not posted at least seven days in advance of the meeting as required by 29 Del. C. §10004(e)(2). We find that these errors were technical violations that did not negatively affect substantial public rights.[17] Therefore, we find that no remediation is required.”

Given that the words “substantial public rights” means no action was taken at those meetings, it was during a regulatory process for Regulation 103 where key issues concerning that regulation would have been discussed at the AFWG meetings. So in a finding that “substantial public rights” did not apply in that situation with pending legislative action, I take issue with that. As well, in the attached minutes from the minutes for the Pathways Steering Committee, there is talk of legislative action and a discussion with the Delaware General Assembly.

In FOIA Complaint #13-IB05, issued October 1st, 2013, citizens filed a complaint against the Charter School Reform Working Group in regards to having closed-door meetings not open to the public. In that Attorney General opinion, it states the following:

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”).

While that opinion was an appeal to an earlier complaint, it states the following:

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;

But in the minutes on the Googledrive for the steering committee, it said this:

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;

While the two items look very similar on the surface, the action of taking out Dr. Brainard from the updated minutes which were created on October 24th by Luke Rhine, which the Googledrive suggests that no action was directed to Luke Rhine, the main Delaware Dept. of Education representative, when in reality it was. This change is substantial. The opinion issued today states that no action was taken at this meeting so the perception that no “substantial public rights” violations occurred by not making a public body meeting public is visibly changed between the two meeting minutes. As well, if the Delaware DOE is the state entity that answered the FOIA complaint and is in charge of posting information about it, why is there absolutely nothing on the Career and Technical Education portion of their website?

We are also expected to believe the minutes and agenda they presented are accurate when they were created at the earliest, six days after the meeting, and at the latest, seventeen days after the meeting:

As well, the response from the Attorney General’s response today shows a link to a website that was not included in the original DOE response to the complaint which means there was further communication between the Attorney General’s office and the parties to which I issued the FOIA complaint against. In all other FOIA complaints I have submitted, I have been a party to those communications every single step of the way but not with this one.

The Deputy Attorney General who wrote this opinion, Danielle Gibbs, handled a FOIA opinion from a complaint I submitted in 2015. She made sure I received all communication from the Delaware DOE on that every single step of the way. But this time I guess I wasn’t so blessed. She actually wrote in the FOIA opinion issued today:

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.

When you go to this website, there are also extensive plans and reports, involving millions upon millions of dollars of funding. I would think that would be crucial for the public to see.

To see these large amounts of funds being talked about over the next three fiscal years, please go here: DE Pathways Priority 4 Funding Plan 10/6/16. Feast your eyes on this document, created on October 6th, one day prior to the Steering Committee meeting. Furthermore, the two entities planning this funding are not even state agencies, they are 3rd party non-profit companies: United Way of Delaware and the Rodel Foundation.

We have three entities involved with this FOIA complaint: the Delaware Dept. of Education, Governor Markell’s office, and Delaware Technical Community College. How did the college get involved? If you look at the Googledrive, the website is listed as:

https://sites.google.com/a/dtcc.edu/pathways/meeting-materials/10-7-16

This is a Del Tech website. Why is Del Tech storing the minutes for this when it is supposed to be under the authority of the DOE? And why is Markell’s office issuing the agenda (ten days after the fact)? When I do a Google search for the past month using “pathways” “steering committee” “dtcc” and “minutes”, nothing comes up on the search. So how would anyone be able to find these minutes without seeing them in a response to a FOIA complaint? Even if I take out “dtcc” and replace it with “Delaware” nothing comes up. Furthermore, there is nothing in the meeting minutes even discussing minutes or where these minutes were to be stored for public consumption. I believe this to be a very sloppy response from all parties involved and further contend this Pathways Steering Committee is not making a good faith effort with transparency. By allowing this public body to be open to the public, all three parties involved seemed to have communicated extensively with each other after I filed a FOIA complaint. I will also add that additional communication provided by the other parties to the Delaware Attorney General’s office needs to be provided to me by the Delaware Attorney General’s office post haste. The Attorney General opinion states it reviewed the website of the Steering Committee but the only way they would have been able to review that was by getting a link for it. Since there is no viable way to search for this Steering Committee through internet search engines, I contend they were given this website by someone involved with it.

This Pathways Steering Committee, that is making gigantic decisions about students, in secondary and post-secondary setting, with plans for huge amounts of money at state and local levels, is all about substantial public rights. When the General Assembly decided not to move forward with the Pathways Steering Committee as sponsored by Senator David Sokola with Senate Bill 277, Governor Markell took it upon himself to issue an Executive Order to create this committee. When our Governor doesn’t get his way with the General Assembly, it seems he has the authority to bypass that with Executive Orders.

What is the point of a FOIA complaint if the Delaware Department of Justice, under the control of the Delaware Attorney General, has no ability to do anything substantial or with any consequences in regards to a FOIA complaint? Why did they rush through the opinion on this FOIA Complaint without really checking into everything? Why was there (in my view) an intentional attempt to lock me out of communication concerning this FOIA complaint when that has not happened in the past? These are the things I want answers for, as well as Delaware Attorney General Matt Denn himself to issue a statement that this public body has to reconvene their October 7th meeting so the public is well aware of this Steering Committee that is deciding the future of thousands of Delaware students with significant amounts of taxpayer funds.

Updated, 4:53pm, 10/28/16: Since I finished this article, I can now see on the Delaware DOE website where they did a link to this on their website. But it is filled with completely wrong information, as seen below. First off, this is not a “task force”, it is a “steering committee”. Second, it was not passed into law on June 14th, 2016 through Senate Bill 277. It became law through Governor Markell’s Executive Order #61, issued on August 11th, 2016. Senate Bill 277 was released from the Senate Education Committee on June 15th, 2016, but it never came up for a vote with the full Senate and the bill died as of the end of the 148th General Assembly on July 1st, 2016.

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