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.

Delaware DOE To Christina: You lose your priority schools, close them or hand them over!

The News Journal has just announced the Delaware Department of Education has given an ultimatum: close your three priority schools, convert them to a charter, or hand them over to a management company.  They have until February 27th to comply.

Matthew Albright’s article is not shocking.  I’ve expected this response for quite a while.  Now the fun begins!  There’s this little thing called the Christina Educators Association.  This is called union-busting, and Governor Markell will not gain any new friends over this.  I think it’s time the Christina Board of Education deployed their “nuclear option”.

The Christina School Board must choose by Feb. 27 whether to close its three Priority Schools or hand them over to charter schools or other education management organizations, the Department of Education has said in a letter to district staff sent Tuesday.

The decision comes after a contentious, months-long back and forth between the state and the Christina School Board.

Announced in September, Priority Schools is the state’s effort to improve six inner-city Wilmington schools in the Christina and Red Clay school districts with some of the state’s lowest test scores. State officials want to get elite school leaders in place, free them from most district rules and split about $2.8 million among the schools to fund innovative changes.

Christina’s three Priority Schools are Stubbs and Bancroft elementary schools and Bayard Middle School.

The plans have encountered outrage and stiff resistance, especially in Christina. Many educators feel the state is blaming them for low test scores when they say the real problems are systemic poverty and violence.

Last week, Christina School Board voted not to approve turnaround plans for the schools. Board members said they wanted more clarity on how teachers would be selected to staff the schools, saying they were convinced current school staff were the best people to lead improvements. They said they did not want to approve plans that could make it easier for teachers to be fired or transferred.

For more reaction from local officials and educators, keep watching DelawareOnline.com and read tomorrow’s edition of The News Journal.

http://www.delawareonline.com/story/news/local/2015/02/10/christina-must-close-hand-priority-schools-state-says/23172067/

Transparent Christina has an actual copy of the letter posted here: https://transparentchristina.wordpress.com/2015/02/10/showdown-2-0-let-the-union-busting-begin/

Delaware DOE Extends Timeline For Priority Schools Deadline To Christina School District

The new tentative deadline for the Christina School District to submit their revised Memorandum of Understanding (MOU) for the three Priority Schools within their district is now January 23rd.  There is a catch here though.  Christina must submit the draft to date by January 9th, and the deadline will be extended if the DOE feels the draft is “substantially approvable”.  The Christina school board will have a meeting on Tuesday, January 20th to have a final vote on the MOU and their priority school plans and they must submit this by the next day, January 21st.  As well, the Delaware DOE will be giving their final comments on Friday, January 16th.

The Christina School Board will be having a meeting on January 7th to work on the priority schools plan some more at 7:00pm.  As well, the Christina Educators Association will be holding a press conference prior to the meeting at 6:30pm.

Other big meetings in January include the Delaware State Board of Education  meeting on January 15th.  This meeting could have a final decision on the fate of Family Foundations Academy in light of years of financial mismanagement and personal use of state funds, as highlighted this week in the well over 200 pages released by the Delaware DOE from the auditing firm of Auphsite Consulting.  The Delaware 148th Assembly begins their legislative year on January 13th, and there just may be some education fireworks that launch very quickly in the form of potential legislation submitted.

For those who haven’t signed the iPetition declaring their position against the priority schools initiative, please go to http://www.ipetitions.com/petition/lets-make-priority-schools-a-real-priority-2