The Associated Press did an article entitled “How open record laws are applied in state legislatures” on March 13th. Delaware did not fare well in this report. The AP sent Freedom of Information (FOIA) requests to all fifty states asking for the public schedules for the state Governor and members of their legislatures for the week of February 1st to 7th of this year. In Delaware, our General Assembly is exempt from FOIA requests. Delaware Governor Jack Markell, who promoted “sunshine is the best disinfectant” regarding public transparency of Governmental records, seems to be having a very hard time with FOIA requests lately, between the FOIA request from his former State Treasurer Chip Flowers and the one he received from the AP for their article. The article gave Markell’s response to the FOIA:
Delaware legislative leaders refused to provide their emails. The Legislature has specifically exempted emails of lawmakers and their staffs from the state’s Freedom of Information law, as well as any communications between lawmakers, or between lawmakers and their constituents. A bill to remove those exemptions was introduced earlier this month but has yet to be heard in committee. An attorney for the lawmakers also said many activities on their daily schedules are exempt from disclosure, asserting that exemptions allowed by statute or common law extend to the concept of “legislative privilege” based on the Delaware Constitution and common law. The attorney nevertheless released portions of the lawmakers’ schedules while asserting that doing so was not a concession that the information is subject to the FOI law. The activities mostly involved appearances at community meetings and charitable events. The deputy legal counsel for Democratic Gov. Jack Markell said the governor’s office is working diligently to respond to the AP’s request, but that more time is needed because review of the records requires legal advice. Markell’s office has previously denied formal records requests for his emails.
I guess I should count myself lucky for the FOIA I received from Markell’s office back in early 2014. But the Chip Flowers FOIA denial is certainly interesting because Markell’s office used Exemption 16 to deny the FOIA request. Exemption 16 is when a General Assembly member or the comptroller is part of an email chain. I find it very ironic the Governor’s counsel would use that as a reason to decline a FOIA. Especially since they seem to cherry-pick when they want to use this exemption. In fact, the Governor’s office has actually shown legislators emails in earlier FOIA requests. Something I recollected right away as I was reading the Chip Flowers petition from the Delaware Attorney General’s office. I felt it was my civic obligation to let them know about this memory of mine.
From: Kevin Ohlandt <firstname.lastname@example.org>
To: Gibbs Danielle (DOJ) <email@example.com>
Cc: Denn Matthew (DOJ) <firstname.lastname@example.org>
Sent: Tuesday, March 15, 2016 10:04 AM
Subject: The Chip Flowers FOIA Legal Opinion
Good morning Danielle,
I read, with great interest yesterday, the FOIA petition from Chip Flowers. I found it very interesting the Governor’s office would cite Exemption 16 for not releasing the information Chip Flowers requested.
In December 2014, State Rep. John Kowalko received a FOIA from the Governor’s office regarding the priority schools in Wilmington. He gave them to me to publish on my blog. In several of the emails, General Assembly emails were used and not redacted, and in some of them they gave the actual email from State Reps.
Here is the link to the FOIAs:
I find it very interesting the Governor’s office would cherry-pick who this information is released to. There is absolutely no consistency and I would strongly question the use of this Exemption 16 when it is convenient. Please feel free to use this information for any ongoing matters regarding Chip Flowers FOIA. If you need any other clarification on this matter, please don’t hesitate to reach out to me.
With something that took up so much media interest, I would think the Delaware Attorney General’s office would respond, but so far I have yet to receive a response. I can only surmise based on the behavior surrounding the Chip Flowers FOIA request and the fact the Governor would need legal advice for the AP FOIA request, the Governor is hiding things. Could there be something in his daily schedule he doesn’t want people to know about? Or in his emails? Did they include his “Alan Jackson” email address? I’ll be flat-out honest: I don’t trust Jack Markell. At all. He is dishonest and sneaky. He seems to have the General Assembly under his thrall this legislative session. They are suspending rules and passing bills in record time. Just today, Governor Markell signed the Commitment to Innovation Act, otherwise known as Senate Bill 200, mere hours after it passed in the House of Representatives and 31 state representatives agreed to suspend the rules. Including some who have gone on record as saying they never suspend the rules. This tax-break bill, in conjunction with House Bill 235, are seen as great boons to companies in Delaware as the state faces potential deficits in their state budget.
I have no doubt Markell will have instituted all of his education policies and agendas in Delaware by the time he leaves office next January. Judging by the mad rush of legislation which will allow tech companies to swarm into Delaware with our generous tax breaks, Social Impact Bonds, Personalized Learning and Competency-Based Education. Kids will be earning their number of the beast data badges in the not-too-distant future. Parents won’t be able to notice, because all of our little screen-time kids will be staying after school in the SAIL program. And Jack’s buddy over at the Rodel Foundation, Paul Herdman… he actually uses LEGOs to lure unsuspecting parents and children into his personalized learning paradise. If you think Kindergarten grit is bad, wait until you get a load of the money pouring into toddler grit. Of course, we must determine what children are going to do when they are older before they even know how to tie their shoes. But we call this Pathways To Prosperity. We have Jamie Merisotis and the good folks at the Lumina Foundation to thank for all of this nonsense! And if you think Delaware has issues with FOIA, wait until you hear more about WOIA! Under the recently confirmed US DOE leadership of John King, these things are going on in just about every single state in the country.
The one thing our non-transparent Governor is good at is the art of distraction. He gets us all riled up over charter schools, opt out, and teacher evaluations while he paves the road to hell for John Carney who doesn’t seem to have the good sense to come up with his own thoughts. And in case we get too close to his overall plan, Jack throws things like the Wilmington Education Improvement Commission vs. State Board of Education battle in our faces but there are questions about the legality of that secret meeting. Hard to tell since no one aside from Tony Allen has responded about that one. Tony made it very clear to me the whole thing was the Governor’s idea.
This is Delaware. A state filled with sinister plotting and backroom deals. Legislators who get the “Jack call” and make miracles happen before our very eyes while telling us it’s all about the DuPont/Dow merger. Markell is the master of spin. He can turn crap into gold! And the state legislators, DOE employees, State Board of Education members, and business leaders watch in amazement as they hold onto their illusions of power and wealth. We call these people “stakeholders”. But guess what doesn’t change? Bullying, teacher dissatisfaction, high-stakes testing, a severe lack of funding and resources for our schools, and more segregation and discrimination for every single at-risk student than you can even fathom. All under the guise of student success. The stuff going on behind the scenes? We will never get that cold, hard, tangible proof to bust these children destroyers. They write the laws to protect themselves and the citizens of Delaware pay for it. And we keep electing so many of them! We are a state that is immune to true and radical change. We act as if holding onto a political party’s belief is what we must do. I hate to tell you Delaware, but greed is bi-partisan. The love we need to have for our children, our unconditional love, that should be enough to make the necessary changes. But we aren’t doing it. We are holding onto the dreams of yesterday and think it really matters who becomes the next President or Governor. We get sucked into the 24 hour news cycle about Trump, Clinton and Sanders while the distracters spin their webs and suck us in. It doesn’t matter who wins the Presidency because corporate America bought our government while we blinked. Our kids don’t have a chance.