Carve me up and serve me on a platter! I have seen a lot in Delaware the past few years, but this one takes the proverbial cake! On May 26th, I submitted a FOIA complaint against Early College High School regarding their Board of Director meetings. It was three-fold. The Delaware Attorney General’s office responded today. I get what they were saying regarding my first two complaints. But the third one. Oh. My. God. This is stuff kids on Romper Room know about FOIA! Continue reading “Delaware Attorney General’s Office Ignores FOIA Law In, Uhm, Opinion About, Uhm, A FOIA Complaint!”
Several Newark, Delaware legislators submitted a Freedom of Information Act to the Delaware Attorney General’s office last Spring. The response to the complaint came out today.
State Representatives Paul Baumbach, John Kowalko, and Ed Osienski, and State Senators Karen Peterson, David Sokola and Bryan Townsend felt the University of Delaware violated FOIA with the posting of an agenda about a change to their bylaws. The Attorney General’s response opined the Board of Trustees at the University did violate FOIA by not posting a specific resolution they would be voting on in the agenda. The AG’s office stated even if the public had some knowledge of what could be happening it still falls on a public board to give notice of the proposed action item on an agenda.
As a result of the FOIA complaint, the University Board of Trustees will vote again on the bylaws at their December board meeting. The AG opinion wants the board to have an open and public discussion surrounding this vote.
I have been hard on Sokola in the past, for what I believe are good reasons. I wish he would demand the same transparency from charter schools. Have you ever seen some of their board agendas? I hardly ever see any action items on them even though they constantly vote on items.
Yes, the words “chicken-fried awesome” were used by a Christina board member last night. But first they had to get through 45 excruciating minutes of approving their agenda. Board member Harrie-Ellen Minnehan introduced motions to remove three action items from the agenda and to table another item. That was just the beginning of a meeting that had topics as varied as car shopping to a very strong use of the word culpability. A member of the audience drew a great rendering of the meeting and asked me to put it in this article.
The four motions Minnehan put forth failed to move forward. Board member Shirley Saffer kept alleging Minnehan had a personal agenda going on. There was a ton of discussion about the motions and how it was unprecedented for one board member to attempt to remove action items like that. As a result of the motions, what should have been a 1-2 minutes process turned into a 45 minute ordeal for the audience. A lot of the audience had come for the presenting of the Honor Roll which is done right after the approval of the agenda and board minutes.
The charter settlement with Christina fell after a 3-4 vote by the board, exactly how the vote went when they voted for the settlement two weeks ago. Board member Fred Polaski tried to convince everyone that he believed the district would lose if it went to court with the charters. He offered no viable reason for why he felt they would lose. But it didn’t seem to matter because the board was clearly divided on many of the same action items with Polaski, Minnehan, George Evans and Meg Mason on one side. On the other were members John Young, Saffer, and President Elizabeth Paige. Young stated the minutes of the executive meeting would now become public since the need for the meeting was no longer valid and the settlement is public. He said he will be submitting updated minutes on that meeting. He also stated he had concerns about the culpability of the district in the matter. He also had grave concerns about the back and forth between the district and attorneys over Thanksgiving weekend and what amounted to a short time period of 90 minutes for the board to review the settlement. Young said that would make for a very interesting FOIA request. He had many concerns about the authority of charter leaders in signing the document, such as an Interim Principal, a Head of School, or a Board President. He reviewed many charter school bylaws and did not see that authority granted to those parties without permission from the entire board. He also did not special board meetings for the charter boards to vote on the settlement.
One of the shockers of the evening (and there were many), was the situation with the Montessori program in Christina. There was an action item to end the program. This became the controversy of the evening as parents and staff members gave public comment in support of the program. When it came time for the board to discuss the matter, Paige asked a question that solidified a crucial problem with the district, that of transparency. Delaware schools receive academic excellence units which they are free to cash in and do as they please. The Montessori program had three of those units. Paige asked about them and it was revealed by the district the Honors Academy would use three academic excellence units. While the district hemmed and hawed about the “coincidence”, Paige said the “optics” look very bad. In a rare moment of unity, the board voted 6-1 in favor of keeping the program with Polaski as the lone no vote. This prompted Young’s quote of the evening. He said the district believes competition is so “chicken-fried awesome” that they should be doing everything they can to get students who are a wait list at First Sstate Montessori Academy into Christina’s Montessori program. Board member Polaski suggested partnering up with the Wilmington charter school to have them open a satellite school in the Christina school district. No one even responded to this rather absurd notion. But it did point to what I see as a very charter friendly Polaski.
Once again, with a 3-4 vote, the board voted against annulling the Honors Academy vote from November with the same 3-4 blocks. Young pointed out that many of Christina’s existing Cambridge programs are disproportionate with the amount of minorities represented in them. The irony of the district wanting to close a program where there is equity (the Montessori program) in favor of moving forward with a program which has a strong potential of inequity (The Honors Academy) did not escape members of the audience. Concerns around placement tests, a parent letter, and standardized test scores were the chief reasons three of the board members wanted to annul the prior vote. There were also concerns around opt out and how the application for the academy could penalize those students who were opted out despite a board policy that explicitly forbids that.
The point of exhaustion for members of the audience surrounded the district’s Superintendent interviews. Yesterday, the Delaware Attorney General answered a FOIA complaint surrounding the board’s November executive meeting to formulate questions for the Superintendent candidate. Some board members refused to participate in the meeting since they had already figured out it would be a FOIA violation. This prompted the board to make public the questions for candidates. There was also a matter about interviewing the candidates the week before Christmas and a mad rush to get it done. As a result, the board voted in favor of naming an Interim Superintendent with Noreen LaSorsa taking on the role. It was agreed the board would conduct Superintendent interviews the first week of January. Saffer argued the board needed the public to see the candidates in the schools and interacting with students and staff as they had done in the past. Board member Evans said he would not participate in any of that. Young’s action item to begin the Superintendent search again to get a more diverse pool of candidates fell with a 2-5 vote with Saffer and Young as the two no votes.
This board is a house divided. Mostly between common sense and… I don’t know what. On the one side we have Young, Paige, and Saffer who seem to know the law and sees how decisions made today could cause problems in the future. On the other is the not-so Fantastic Four who always seem to be in this frantic hurry to get things done now without looking at all of the angles. They also seem to be easily intimidated by the district and outside forces. This shapes their votes. Minnehan took a pointed jab at Young as she said she would never want to go car-shopping with him because he takes too long to make a decision. I would rather have that than winding up with a lemon Mrs. Minnehan! As I drove down to Dover after this very long meeting which entered an actual new day, I saw a warrior district succumbing to the privatization movement that is paralyzing public education. I believed for a long time Christina was the last hold-out in Delaware, but after some of the votes last night, it was painfully obvious the last blockade fell. At this point, Delaware needs a hero. We need an Obi-Wan moment where someone answers the call of “you’re my only hope“. Will that person come from Christina or somewhere else?
I gave the following public comment to the board last night but despite my six minutes thanks to borrowed time, I was not able to get to the end of it which I will notate in the below comment.
Good evening ladies and gentlemen of the Christina School District Board of Education. It has been a long time since I came up to this podium to speak before this board. The last time I did so was seventeen months ago. I believe Ms. Minnehan was the Board President at that time. A lot happened at that meeting. I did want to offer an apology in regards to that. I’m sorry it has taken me so long to give public comment here.
I have a lot to talk about tonight, mostly in regards to the charter school shakedown, er, uhm, lawsuit.
First, can you please, for the love of all we hold sacred, fix the sound for the audio recordings on your website? It is a recurring issue and I’m certain it wouldn’t cost that much money to correct this.
Second, I am very curious why a FOIA request I sent to the district was never followed up on. I sent a FOIA request to the district asking for the past three years of all air quality inspections for every single one of the Christina schools. I received an email back that a cost estimate would be forthcoming. That was almost two months ago. I received nothing. As Delaware state code gives any public agency a period of 15 business days to respond to a FOIA request, the district has violated FOIA. Please remedy this by tomorrow so I do not have to file another FOIA complaint with the Delaware Attorney General’s office. Which I’m sure this district has had enough of. But I digress.
I do not believe the board should even entertain not voting on the rescission of the settlement. I am glad that motion failed. (I adlibbed the last sentence because of the board not passing Minnehan’s motion but I am not entirely sure on the wording). I believe it is very important you vote in the majority to vote yes on rescinding the settlement. As we all know, this was brought forth by Greg Meece over at Newark Charter School. What has never been answered is HOW Greg Meece suddenly, last winter, decided to get a meeting with the fine people at the Delaware DOE. How, all of a sudden, Meece knew EXACTLY what to look for. According to a letter Meece wrote last week to the parents of NCS students, Secretary Godowsky never knew about the change to the local funding formula. So Godowsky reversing a decision he never made, which was cited in the lawsuit and settlement, is frivolous at best. This entire shenanigan was meant to intimidate Christina, and sadly, the district took the bait. They didn’t just take the bait, they swallowed it and regurgitated it to four board members who voted out of fear rather than common sense. That is something that needs to be reversed tonight. I would rather see this district take this ALL THE WAY than see one more penny going out of this district to certain charters who want for nothing. If anything, the DOE should be the entity paying for this year’s charter share of the 2003 referendum and all future costs due to their colossal screw-up, not just getting off the hook by paying for half the attorney fees. But more than that, what may not have come out of all this, is the role the Office of Management and Budget played. As Brian Stephan wrote in a recent article on Delaware Liberal, something happened in 2014 that changed everything with the local funding formula. What he didn’t write, which he may not have been aware of, was why everything changed that year. The Office of Management and Budget, a section of Governor Jack Markell’s office, took over the responsibility from Mark Murphy to oversee this aspect of Delaware education financing. Oh so coincidentally, that was the same year the Delaware DOE launched the priority schools debacle and launched a coordinated attack against Christina when this board would not cower and buckle to Governor Markell’s shameful education agendas. While I am not an attorney or an accountant, I am just a blogger. According to Newark Charter School parents, I’m a sneaky snake blogger. But it is my belief this omission of paying the charter schools their portion of the 2003 referendum was, at best, an egregious error that the State of Delaware should pay moving forward. If that were not enough, the fact that tuition and match taxes were brought up in the settlement is very troubling. The charters have no right to those funds so why it was brought up in a settlement is beyond me. I certainly hope none of that nonsense was the district’s idea. That just opens the door for future siphoning of district funds the local taxpayers entrusted to the district, not to fifteen charter schools. If I’m not mistaken, Christina does not get large donations from the Longwood Foundation, they don’t get a larger proportion of minor capital funds based on their student populations like the charters do, and they certainly don’t get to keep excess transportation funds under their “budgeted” amount.
While we can sit here and pretend the charter cabal, led by Saul Ewing LLC, is a force to be reckoned with, the simple fact is they made unprecedented money grab. This could have been done a dozen different ways, but they chose threats and intimidation, with support from certain legislators in both the House and the Senate, to get what they wanted. As a result, if this board does NOT rescind the settlement, it will continue to give away funds this district desperately needs to 15 charter schools who have more than enough money already. And if you are going to put your trust in the Delaware Dept. of Education to do the right thing, you have already put one more nail in the coffin of this district.
At this point my time ran out, but this is how I planned to finish my public comment:
I strongly urge this board to continue to keep CSD moving forward. That does not mean responding to bullying threats by what amounts to non-profit corporations in Delaware. That means fighting for what is yours. As your CFO, Bob Silber, rightly argued, this district did what they were supposed to do. It was the State that screwed up. If this board is truly supposed to represent this district, and not Saul Ewing, Greg Meece, and the charters that have taken more funding from this district than any other force in this state, they will need to do the right thing and rescind this farce of a settlement that will allow charter schools to plunder funds not just from Christina, but would set a precedent for every district in this state.
I love the fact that the anonymous donation to Stubbs was highlighted by so much media in this state. But those students deserve more than having additional funds taken from them that would put the lunch balance to shame.
Thank you, and I do want to wish all of you a great holiday. Bob A, thank you for the Frozen memory. Good luck in your future endeavors.
To read the response to the FOIA complaint from the Delaware Attorney General’s office, please read below:
A pungent stench is coming from Delaware Attorney General Matt Denn’s office when it comes to the Freedom of Information Act. When the Delaware Attorney General’s office gets the facts wrong on a response to a FOIA complaint, the only way for a Delaware citizen to correct those errors is to file with the Superior Court. Which costs money and fills the state coffers. Can someone please remind me why I pay taxes for a state where our Governor feels “sunshine is the best disinfectant“?
The response I received two days ago from Matt Denn’s office stems from my FOIA complaint and the Delaware Dept. of Justice’s response to that FOIA which came out on October 28th. The Delaware Pathways Steering Committee did not publish their first meeting anywhere and I filed a complaint. Considering the DOJ is still working on a FOIA complaint I submitted last March, it seems there was a rush to put the matter concerning Governor Markell’s Executive Ordered Delaware Pathways Steering Committee to bed.
When I emailed Denn’s office to reevaluate the FOIA response the same day, I didn’t hear back from anyone. On Tuesday I sent an email to Matt Denn asking for any type of response to my October 28th request. On Wednesday, I received the below email from Kim Siegel, Denn’s FOIA Coordinator. I did edit out part of the email which covered a separate matter I am working on with Denn’s office.
From: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
To: Kevin Ohlandt <email@example.com>
Sent: Wednesday, December 7, 2016 4:04 PM
Subject: October 28, 2016 determination
Dear Mr. Ohlandt,
Attorney General Denn has asked me to respond to the issues raised in your December 6, 2016 e-mail. Your e-mail makes reference to an October 28, 2016 determination by the Chief Deputy Attorney General in response to a FOIA petition regarding the Pathways to Prosperity Steering Committee. Under the Delaware Code, a petitioner who is dissatisfied with the outcome of a FOIA determination by the Chief Deputy Attorney General may “appeal the matter on the record to Superior Court.” Therefore, if you wish to appeal the determination, that is the mechanism under Delaware law by which to do so.
Kim Siegel, MPA
Legislative Affairs Manager
Delaware Department of Justice
So if I am understanding this correctly, when a citizen alleges a public body has violated FOIA, which is the law, the public body can skirt around the law and give false information. But when the citizen calls them out on it, through a request for appeal, suddenly the DOJ decides the law is important. The mechanism for appeal is not fair at all to a citizen looking for transparency.
What is the point of a Freedom of Information Act request if the agency looking at it refuses to look at all the facts from both sides? This is typically how it is done- a party files a complaint with the facts as they know them, the DOJ sends the complaint to the party that had the FOIA complaint filed against them, the defending party sends a response, the DOJ sends the defendant agency’s response to the accuser, and then the DOJ rules on the complaint. I have had FOIA complaints in the past that dragged out because the DOJ wanted more information. Apparently, that was not the case with this complaint. The DOJ Chief Deputy Attorney General came out with this FOIA response in record time without any chance of obtaining more information on the matter.
So if I want to take this matter further, I have to file with the Superior Court. How much would that cost? According to the Superior Court website, it wouldn’t be cheap!
- $10.00 Court Security Assessment Fee
- $190.00 for the first 40 filings of an action
- $150.00 for request for a trial date which is non-refundable
- Fees do not include advertising costs which shall be billed directly to the filing party.
So right off the bat, filing an appeal against a FOIA response from Matt Denn’s office would cost me $350.00 which I would not get back no matter how the Superior Court ruled. I could do this without an attorney and most likely get chewed alive by the DOJ’s attorney. So I would probably have to get my attorney. That would cost well over $1,000.00. And that number would climb once it went to trial.
The transparency racket in Delaware is almost criminal. In essence, it is a money-maker for the state in many situations. I don’t have that kind of money. Most Delawareans don’t. Which is exactly what they count on. When you file a FOIA complaint against a state agency asking for emails, the state agency knows they can say they don’t have the emails. At that point, the state agency responds they don’t have them but the requesting party can file a $250.00 fee with the Department of Technology and Information to do a search for those emails. Most people don’t have $250.00 they can just fork over like that. And then the fees associated with reviewing the information. Depending on what the party is looking for, this can climb into the four figure amount quickly.
Here is the bottom line: people don’t file FOIA requests if they think everything is hunky-dory. They believe something illegal happened or is about to happen. While FOIA responses from the DOJ don’t always rule there was a FOIA violation in a complaint, at times their reasoning is subjective. The DOJ is not going to sue another state agency. So if a citizen wants to take that extra step, they have to pay. Even if the DOJ’s office gets information wrong, they appear to be above the law unless you take them to court.
It is the Department of Justice, not the Department of Covering Other State Agencies Asses. But transparency is a fickle beast depending on who you want it from. I guess us taxpaying citizens are not meant to know the truth about matters in Delaware. It is bad enough Governor Markell can evade transparency by including a member of the General Assembly on an email (no member of the General Assembly is subject to FOIA), but it appears FOIA in and of itself is not freedom of information. It should be called DOIA, the Denial of Information Act.
Last year, Delaware State Rep. Sean Lynn sponsored legislation which would have lifted the FOIA ban on the General Assembly. It went nowhere. Far too many of our legislators hide behind that privilege and are able to operate with no transparency. And our state leaders take full advantage of this when possible. The way Delaware code is set up it makes it impossible for a citizen to find out matters in the public interest. When a citizen files a FOIA complaint with the DOJ, that office makes it impossible for a citizen to appeal that decision unless they pay money to the state. Even if that citizen produces contradictory information which could easily give the matter further merit.
Until our legislators stop playing games with the truth, nothing will change with FOIA in Delaware. We are just the pawns too many of them suck up to when they need our vote. Once again, I say this with the caveat that there are some legislators who are good people. But it rests with the leadership of the House and Senate as well as the committee Chairs. If you have nothing to hide, there shouldn’t be a problem with making FOIA easier. But it is more clear that fraud and cover-up exists at the highest levels of Delaware. And when an education-sucking vampire like the Rodel Foundation gets thrown into the mix, all bets are off.
This is the email I sent to Delaware Attorney General Matt Denn when I submitted a request for appeal on the FOIA response from October 28th:
From: Kevin Ohlandt <firstname.lastname@example.org>
To: Denn Matthew (DOJ) <email@example.com>
Cc: Siegel Kim (DOJ) <firstname.lastname@example.org>; Gibbs Danielle (DOJ) <email@example.com>; OpenGovernment <firstname.lastname@example.org>
Sent: Friday, October 28, 2016 4:47 PM
Subject: This FOIA Complaint legal opinion issued today is just wrong.
I am openly and publicly asking you to respond to this opinion issued from your office today acknowledging ALL the facts I presented in this article as well as the questions posed at the end of the article:
Yesterday, the Delaware Attorney General’s office opened up Delaware to the world of the Delaware Pathways. Granted, this had to come in the form of a FOIA complaint from yours truly. But feast your eyes on all the big plans rolled around this initiative. An initiative so big Governor Markell had to issue an Executive Order when the General Assembly said no thanks to legislation creating a Steering Committee around the Pathways gig. Given how much is tied into this thing: Common Core, the state assessments, millions upon millions of dollars of state funding, outside businesses, all three of our major colleges, etc., is it any wonder this group has tried to keep things hush as long as they can? All I can say is whenever Rodel gets involved, something goes wonky with transparency. So what is “Work-Based Learning” and “Working To Learn”? The answers lie within. If you oppose this, let your voice be heard now. I do not believe it is a coincidence at all that Delaware will be handing in the first draft of their Every Student Succeeds Act state plan in the next few days. Between this and the ESSA state plan, with all the smoke and mirrors involved with that, NOW is the time to be extra vigilant. Read every single word in these documents. Every. Single. One.
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:email@example.com]
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.
Last Spring, I submitted a Freedom of Information Act complaint against Gateway Lab School, a Delaware charter school, to the Delaware Attorney General’s Office. As any regular reader of this blog is aware, I frequently review meeting minutes for charter schools and school districts. What I saw in the March minutes for Gateway Lab School shocked me. Not so much from what they did, but the fact our Attorney General’s office released similar opinions on these kind of matters in the seven months prior to this. I bear no ill will towards Gateway or their board. I have always commended this charter school for servicing students with disabilities as the bulk of their student population. I was among the majority who felt the Charter School Accountability Committee’s 2014 recommendation to shut the school down was absolutely ridiculous, especially when that decision was based on standardized test scores.
After I filed the complaint, myself and Gateway went back and forth via email on the complaint. During that time, I found another similar action by the Gateway board. While I had some pains submitting the original complaint because of my loyalty for a special needs school, I felt it was important for them to correct this action. Did they? And how did the Attorney General’s office rule on my complaint? Find out below!
Delaware State Representative Kim Williams filed a FOIA complaint against the Delaware State Board of Education last February in regards to their board meeting on February 18th. This was the infamous and controversial Wilmington Education Improvement Commission redistricting plan vote! Regarding public seating at State Board meetings, the Attorney General is going by how many people sign in for these meetings. Frequently, Delaware Department of Education Employees attend these meetings (that are not directors which are assigned their own seats on the sides of the room) and do not sign in. This can take up a lot of seats. Not everyone signs in. I have attended many of these meetings to see several people in the hallway. It has been addressed in public comment to the State Board of Education on more than one occasion.
July 28, 2016
VIA EMAIL AND STATE MAIL
Representative Kim Williams
411 Legislative Avenue
Dover, DE 19903
Re: FOIA Complaint Concerning the State Board of Education
Dear Representative Williams:
The Delaware Department of Justice (“DOJ”) received your letter dated February 25, 2016 requesting our determination, pursuant to the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), of whether the State Board of Education violated the FOIA open meeting requirements. We treat your email as a petition for a determination of whether a violation of FOIA has occurred or is about to occur. 29 Del. C. §10005(e). Our determination is set forth herein.
I. FACTUAL BACKGROUND
On February 18, 2016, a State Board of Education (“Board”) meeting was held in the second floor Cabinet Room of the Townsend Building located at 401 Federal Street in Dover. Representative Williams attended the meeting along with other members of the public. During the meeting, the Board entertained a motion to approve the Wilmington Education Improvement Commission (“WEIC”) Plan with an amendment.
II. POSITIONS OF THE PARTIES
The Petition alleges that the Board “was aware that many people would be attending th[e] meeting and did not change their meeting location to accommodate all the people.” As a result, Representative Williams alleges “many people had to stand out in the hallway.” The Petition also alleges that the Board violated FOIA’s open meeting requirements by conducting conversations off the record and out of the presence of the members of the public who were in attendance:
The State Board during their public discussion on the original motion stopped the discussion and went off the record and out of the room to speak with their attorneys and board members – it was done when they were getting ready to vote. The State Board of Education, Donna Johnson, Secretary Godowsky, attorneys and others were going into the back room – obviously they were in discussions about the motion …
Finally, the Petition alleges that the Board acted improperly by considering the WEIC recommendations with conditions after the motion on the WEIC Plan had been voted down by a vote of 4 to 3. Specifically, pursuant to Senate Bill 122, the Petition alleges that the Board was required to vote yes or no, and if they voted no, “they [we]re to send the recommendations back to the WEIC Commission with an explanation as to why they voted no.”
The Board submitted its response to the Petition on March 9, 2016. Regarding the allegation that the Board should have moved the meeting location in advance of the meeting, the Board argues that the Board was unaware that the meeting would be as heavily attended as it was. In fact, the Board noted that WEIC representatives had reached out to the Board and requested that six chairs be reserved in the audience for the meeting. The Board also responded that it has held its meetings in the Cabinet Room for more than forty years. With respect to the allegation that the Board improperly engaged in conversations off record, the Board responded that the President of the Board discussed a procedural question for the Board’s counsel during a break, but that “at no time was a quorum of the board involved in any private or ‘back room’ meeting,” and there was thus no violation of FOIA as a result of conversations among Board members that may have taken place during the break.
On March 10, 2016 and March 20, 2016, Representative Williams supplemented her Petition. In the March 10 correspondence, Representative Williams asserted that members of the public have repeatedly complained about the size of the meeting location and the fact that the Board has always met in the Cabinet Room is not a sufficient basis for the meetings to remain in that room. Additionally, she alleged that any questions that were discussed during the break should have been discussed in public. In the March 20 correspondence, Representative Williams asserted that “[t]he discussion should have never occurred in the back room, with or without a quorum, behind closed doors.” She also provided an email from Michael Matthews, who asserted that “[a]ll Board members, Sec. Godowsky and State Board Executive Director Donna Johnson left the room together…”
III. REQUEST FOR ADDITIONAL INFORMATION
On June 9, 2016, we requested additional information from the Board regarding the size of the Cabinet Room. The same day, the Board responded that, when the room is set up for State Board of Education meetings, there are 57 chairs. However, for the February meeting, there were about 64 chairs. The Board noted that, for each meeting, there are about 20 reserved chairs. Based upon this information, including the six chairs specifically reserved for the WEIC at the February 18 meeting, there were about 38 chairs open at the February meeting.
The Board also provided a count of attendees at previous meetings based solely upon the individuals who chose to sign in at each meeting, which the Board indicated was its only mechanism for counting attendance. The September 2015 meeting during which WEIC was discussed, had 37 guests sign in. WEIC was also discussed at the October meeting, which had 22 guests. The next time WEIC was discussed during a Board meeting was December, when there were 47 guests. At the January 2016 meeting the WEIC proposal was presented for action and there were 31 guests. Finally, at the February 2016 meeting at issue here, there were 58 individuals who signed in. There were 35 guests who signed in for the final WEIC meeting in March 2016.
IV. APPLICABLE LAW
FOIA’s “Declaration of Policy” provides that “citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made ….”
“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].” “Public body” includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making “reports, investigations or recommendations” to a public body.
A public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.”
The Board Violated FOIA by Not Moving or Considering Whether to Move the February 18, 2016 Meeting From the Cabinet Room.
Representative Williams alleges that the Townsend Building Cabinet Room was too small to hold the public interested in the WEIC matter. The Board responded that it could not have anticipated the number of people who attended the meeting, especially because WEIC only requested that six chairs be reserved.
When considering whether a public body has violated the open meeting requirement based upon the alleged inadequate size of the venue, we have looked both at what the public body knew at the time of scheduling and how it responded to an unexpected overflow. “‘[T]he governmental unit must balance the public right of access against the burdens that providing additional public access would impose on the governmental unit.’” The standard for any individual meeting is reasonableness under the circumstances.
FOIA does not require the public body to predict the exact number of citizens who may attend a public meeting. But, we have stated that “if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting.” A venue that may be reasonable at the time a meeting is noticed may become unreasonable due to an unanticipated overflow at the meeting. Thus, we have also stated: “[I]n the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.”
Viewed from the perspective of what the DOE knew before the meeting, we find this to be a close call. The WEIC matter was highly-publicized and politically charged. The Board has been using the Cabinet Room for its meetings for more than 40 years, including for the four previous meetings of the WEIC. Representative Williams contends that the public has “repeatedly complained” about the inadequate size of the room, but she does not identify to whom such complaints were directed, and there is no evidence that anyone contacted the DOE before the meeting to request that the meeting be moved to a larger venue. Also, the sign-in sheets reveal that 23% more people signed in at the February 18 meeting than the highest number DOE had seen from the previous meetings. Perhaps attendance at this meeting was anomalously high. Unfortunately, the number of people who sign the sign-in sheets reveals little about the actual attendance at any of the prior meetings.
But, we must also consider what information DOE had at the beginning of the meeting, when it could have made some reasonable accommodation for an unanticipated overflow. The exact size of the overflow is not clear. Representative Williams says that “many” people were made to stand in the hallway. We have no information from DOE respecting the size of the overflow at the meeting, except for the information we can glean from the sign-in sheet, which, again, reveals little about actual attendance. What is clear, however, is the absence in the record of any facts suggesting that the DOE considered or attempted to respond to the overflow or to make reasonable accommodations to facilitate citizens’ attendance at the meeting.
On the whole, we must conclude that the DOE has not met its burden to prove that it satisfied its obligations under FOIA in connection with the February 18 meeting.
The Board Did Not Violate FOIA When the President of the Board Consulted With the Board’s Counsel.
Representative Williams states that the Board took a break during the February meeting in the middle of discussing the WEIC motion. This exchange was not recorded, but counsel for the Board confirms that the Board President and counsel for the Board engaged in a discussion about the vote. Counsel also states that three other Board members approached counsel with questions, each separately. Counsel for the Board states that at no time was there a quorum of Board members discussing public business during a break.
A public meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business….” Moreover, “conversations with each other or with staff do not need to be public unless they include a quorum of the members.” Indeed, “absent some evidence that the members knowingly avoid public monitoring of the deliberations of the quorum, there is no basis on which to find that FOIA has been violated.”
Here, there is no evidence that a quorum of members discussed the vote with the Board’s counsel. As such, we find no FOIA violation in connection with Board members’ individual discussions with the Board’s counsel.
The Substantive Validity of the Board’s WEIC Vote is Outside the Scope of FOIA.
Representative Williams raises concerns regarding the substantive validity of the Board’s vote on the WEIC matter. The substantive validity of the Board’s vote is a matter outside the scope of FOIA and, as a result, is not addressed here.
We conclude that the Board violated FOIA when it failed to consider the adequacy of the venue upon learning of an overflow of attendees. However, we decline to find that the Board’s actions at the February 2016 meeting should be invalidated. To invalidate the numerous actions taken at the February meeting would have “draconian consequences.” Additionally, invalidation of the SBE’s approval of the WEIC plan is moot given that the General Assembly sent the redistricting plan back to the WEIC for further consideration and development. We suggest that the Board consider the adequacy of the Cabinet Room as a venue when scheduling future meetings or when thereafter confronted with unanticipated interest.
This decision is directed solely to the parties identified herein. It is based on the facts relevant to this matter. It does not constitute precedent and should not be cited as such by future parties.
Very truly yours,
/s/ Danielle Gibbs
Chief Deputy Attorney General
cc: Patricia A. Davis, Deputy Attorney General (via email)
 The Factual Background Section of this Opinion refers to your communications as made by “Representative Williams” for ease of future reference by third parties.
 There is no evidence in the record that the DOE asks all attendees to sign-in at meetings.
 29 Del. C. § 10001.
 29 Del. C. § 10004(a).
 29 Del. C. § 10002(c).
 29 Del. C. § 10004(c).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002) (quoting Del. Op. Att’y Gen. 96-IB23 (June 20, 1996)).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).
 This historical fact is not relevant to whether the venue for any particular meeting is reasonable under the circumstances. But, it suggests that if someone was aware that a large number of people would attend the meeting, that person might have informed the DOE in advance. Cf. id.
 Indeed, the DOE’s response that the Cabinet Room has been used for forty years suggests that it has not adopted a practice of considering the adequacy of its standard venue in connection with each public meeting. Cf. Del. Op. Att’y Gen. 96-IB23 (June 20, 1996) (noting public body’s history of selecting meeting space based upon anticipated or actual attendance); Del. Op. Att’y Gen. 14-IB03 (June 16, 2014) (public body did not violate FOIA, despite turning attendees away from meeting, where it had forgone its regular meeting venue and noticed meeting for a significantly larger venue); Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998) (public body responded reasonably to unanticipated attendance by moving to larger space to discuss one issue that generated great interest).
 29 Del. C. § 10002(g).
 Del. Op. Att’y Gen. 10-IB12 (2010). See also Del. Op. Att’y Gen. 16-IB05 (2016).
 Del. Op. Att’y Gen. 10-IB12 (2010).
 See Del. Op. Att’y Gen. 16-IB05 (2016); Del. Op. Att’y Gen. 15-IB06 (2015).
 See Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *8 (Del. Ch. Oct. 1, 1990).
If an entire board leaves a room after casting a vote, says they need to convene with council, come back and change their vote, against the spirit of the legislation that charged them with taking a very particular vote, what more evidence do you need? They all left the room together! Come on Delaware Attorney General Office! Would it kill you to actually side with right on this one? It may be out of your scope to decide if the board acted appropriately in regards to Senate Bill 122, but isn’t that your purpose? To look at former Attorney General opinions, that did not have the scope of this decision, is not sufficient in my opinion. And the whole part about “draconian consequences” is bogus, once again, in my opinion. The State Board and DOE will always say and do anything to cover their ass. They are masters at this practice. And they get away with a lot because of it. The premise of FOIA is good, but what comes out of it, more often than not, takes the side of the state entity that has the complaint lodged against them. The main thrust of Rep. Williams complaint was the State Board of Education violated FOIA by meeting as a quorum outside of the public setting. Instead we get this long litany of how many chairs were in the room and who signed up as an attendee!
Yes, we are all in agreement: this State Board of Education needs to change the location of their meetings! At the Collette Center up Route 8, the DOE has two huge conference rooms with a partition that can be taken out to make it an even bigger conference room. This location can fit hundreds of people. Make it happen State Board! And I’m pretty sure that the air conditioning unit in this newer building is better (after last week’s sticky, sweaty, humid board meeting at the Townsend Building). Tradition should not get in the way of public access. We all know there are some State Board meetings where attendance is slim, but that is not the norm. Especially with all the crazy decisions regarding charters, accountability, teachers, and schools at these meetings. Here is another novel idea: Live Stream your meetings! The General Assembly does it when the full House and Senate are voting on bills. Why can’t you?
I do know one thing. I have a couple FOIA complaints out there myself. This explains why I haven’t heard anything on them yet!
Gateway Lab School, a Delaware charter school that serves a very high population of students with disabilities, held a special board meeting on April 4th, 2016. The purpose of the meeting was to discuss a due process mediation. Can you spot the Delaware FOIA violation? It’s easy if you try!
Oops! That’s a big one! I’ve already filed the FOIA complaint to the Attorney General’s office. As a gentle reminder to all school boards in Delaware: you can discuss student related matters in executive session if it pertains to an issue, but you can’t vote on it in executive session. You need to come out of executive session and vote on it then. Now you can’t, and shouldn’t, say this is for x student’s due process mediation situation. But I would suggest giving a number for all action items at a board meeting. Many boards do this already. You can just say, as an example, “In the matter of 16-322, may I have a motion to vote on this action item?”, or something along those lines. It wasn’t that long ago that Brandywine School District’s board had the same issue which is causing issues for the district now as part of a lawsuit.
As well, I have also requested an opinion from the same office about public comment at public meetings. I have noticed some Delaware charter schools ask public comment to be submitted up to two weeks in advance before a board meeting. I don’t think that is in the spirit of the law. Any member of the public should have unfettered access to a public meeting and have the ability to give public comment without having to give advance notice.
Sorry Gateway! Don’t mean to call you out but if all of your board members have not received the full training on these matters I would definitely get on that!
As reported by Randall Chase with the Associated Press yesterday, Delaware’s Cyber Security Advisory Council kicked off their first meeting with a Freedom of Information Act (FOIA) violation. But what the article didn’t cover was how the state tried to cover its tracks after the meeting.
James Collins, the state’s chief information officer and head of the council, then said the panel would meet in executive session, even though Delaware’s Freedom of Information Act requires that such closed-door meetings be noticed ahead of time.
But do they have the ability to time travel into the future to give that notice? Apparently, they do!
This is the agenda for the first meeting as shown on Delaware’s Public Meeting Calendar website.
It looks like they have everything covered, right? Including a FOIA Exemption Proposal because they know they are violating FOIA. Here is the page from the Public Meeting Calendar website:
Looks okay to me, right?
In the above picture, taken from the bottom left-hand corner of the Public Meeting Calendar notice, it shows three change dates. 3/3/2016 was the original posting of the meeting, 3/22/2016 I would assume had the addition of the FBI Agent giving the briefing on the unclassified threat, and the 3/23/2016 change was to give notice about the group going into executive session to discuss the unclassified threat. So maybe Randall Chase got it all wrong, right?
Nope. This picture is the properties of the PDF. If you right-click with your mouse on a PDF, it tells you when a PDF was created and modified. This PDF was actually created yesterday, 3/23/2016 at 3:17:16pm. It was a brand new agenda. The part blacked out is my own personal location for my computer which I didn’t think was necessary to throw out there so I will fully admit I blacked it out in the picture.
Someone should really file a FOIA complaint on this one to the Delaware Department of Justice! Oh wait, I already did…
An attorney representing a student in the Brandywine School District filed a FOIA complaint against the Brandywine Board of Education. The matter concerned expunging a disciplinary record for a student. While the report does not go into details, obviously, of who the student was or the incident that led to a disciplinary action, that was not the basis for this FOIA complaint. The Brandywine board decided against expunging the student’s record in executive session but did not vote on the action item on their agenda in public session.
From the legal opinion:
FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting. See 29 Del. C. § 10002(a). If the public body intends to go into executive session, it must so indicate in the agenda. See id. Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public. Id. Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op.Att’y Gen. 06-IB12, Del. Op.Att’y Gen. 05-IB29, Del. Op.Att’y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.
The Board does not have any procedures for considering a student’s request to expunge his or her record. The process is discretionary. Counsel for the Board argues that there was no vote in executive session. The statute does use the term “vote,” but we take a practical view and look at whether a matter was “decided,” even if the body avoids a vote. The Board sent a letter “declining” a proposal; this acknowledges that a decision was made. Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over. In any event we cannot say that the decision was made publicly. We believe the import of the statute’s language that “all voting on public business must take place at a public meeting and the results of the vote made public” is that the public should be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session. Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.
We find that the aforementioned Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA. The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.
The attorney representing the student received an email from the district’s attorney which stated:
On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, “Steve. Given the strength of the District’s position it declines your client’s proposal to clear his record.”
While this does not make this a legal ruling, but rather an opinion, if the party who filed the FOIA complaint wished to pursue legal action, they certainly could. However, by state law, the Department of Justice could not sue since school districts are a part of the state. Last month at the Delaware State Board of Education there was an appeal matter on the board’s agenda. This concerned an appeal against the Brandywine Board of Education. It is not known if the two are connected. To read the full ruling, please go here.