It's ‘Sunshine Week!’
Each year, journalists, civic groups, government watchdogs and others throughout the US take a week in mid-March to highlight the importance of government accountability and transparency in an open society. That week ends tomorrow, on Freedom of Information Day, coinciding with the birthday of US founding father James Madison, a champion of transparent institutions and Freedom of the Press.
At New Castle City Topics, we can think of only one proper way to celebrate this observance (which is not just a nice principle, but essential to what we do) - by sharing information. This post is a local guide to open government, including:
Understanding Delaware’s Sunshine Laws,
How to File FOIA Requests with City & State Governments,
Other Resources for Researching Public Info in Delaware,
A guest column: ‘Growing Secrecy Limits Government Accountability,’ and
What You Can (Still) Do to Celebrate Sunshine Week.
Understanding DE’s Sunshine Laws
The Delaware Freedom of Information Act is a series of laws guaranteeing that the public has access to the public records of governmental bodies. Public records are defined as information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected by any public body, relating in any way to public business, or in any way of public interest or in any way related to public purposes.
Any citizen of Delaware may request public documents and the purpose of the records request is not required. The Delaware Freedom of Information Act does not place limits on the use of public records and there is a 15 day response time allotted.
The Delaware Open Meetings law, included in the Delaware Freedom of Information Act, states that all gatherings of quorum of members of a public body, whether formal, informal or through video conferencing, with the intention of discussing public business are considered meetings. The law also requires ten day notice of meetings, including an agenda of the matters to be considered.
The act defines “government body” as any agency of the state or any subdivision (such as a county or municipality), and any agency or body created or empowered by a state agency which receives or disperses public fund or acts in an advisory capacity. If the Delaware Open Meetings Law is violated, the resident may contact the Attorney General. The AG then has 20 days to respond with a decision.
Exemptions to open records laws include:
“Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy”
Trade secrets
Current police investigations, adoption information, and child custody information
Any criminal records deemed personal and private
The minutes of executive meetings where the the meeting has been closed by a vote of the public body because the subject of the meeting was either hiring discussions, disciplinary hearings, litigation strategy, criminal investigations or preliminary discussions of publicly funded projects.
Any records that could result in a security risk to either individuals or infrastructure
The emails of the Delaware General Assembly and their staff
Much of the info above comes from the National Freedom of Information Coalition.
Filing FOIA Requests with the City & State
The Freedom of Information Act (FOIA) is an important tool for journalists, civic groups, government watchdogs and Citizens to track what state (and some private but public-facing) entities are doing in the name of the public.
Filing requests is actually fairly easy, thanks to the availability of web portals. Many governments and larger agencies also have officials or entire offices dedicated to handling public information and responding to FOIA requests. (Though this practice can be a double-edged sword, as the guest columnist below notes.)
Once you know what information you are seeking, it is important to get specific about what documents or records may get at that info. Requests need to be as clear as possible about the records sought:
Include an approximate date or date ranges
Names of people who are ‘a party to’ the record
Agencies involved
Type of records - emails, memos, contracts, etc.
Finding what documents to ask for can sometimes require a bit of research… and sometimes one may find that the information they’re seeking is already publicly available. However, your preferred search engine and some of the records links in the ‘Information Resources’ section below are great places to start.
With the topic and the documents to get you there in mind, it’s time to head to the appropriate form to submit your FOIA request. Below are links to the FOIA Filing Pages for each level of government. (For the US government, the link goes to a page where you must first select the appropriate federal agency.)
City of New Castle: newcastlecity.delaware.gov/foia/
New Castle County: www.newcastlede.gov/375/
State of Delaware: delaware.gov/foia/
Federal Administration: foia.gov/agency-search.html
The form itself will ask you to provide contact info and clearly describe the records sought. Normally there is no fee for getting digital records, but expansive or voluminous requests may incur a cost, so the form also asks you to set a dollar threshold above which you’d like to be contacted. Some records may also have to be reviewed at the government or agency office.
FOIA Requests up to the state level must generally receive a response within 15 days. Once you get the response, check the records received and determine if they have satisfied the request. Sometimes clarifying the request to get additional info may be possible through an email exchange following the initial response.
If it’s not possible to come to terms, and you believe your request was clear and you have a right to the records, there is an option to appeal FOIA decisions. Finally, FOIA is enforceable through litigation, if a citizen believes the government or agency is ‘stonewalling’ when the information sought is legitimate.
Public Information Resources for Delaware
There is an enormous amount of information about the activities of the government, its agencies, and certain public-facing nonprofits available online with no need for a formal FOIA request. From correspondence, meeting info and minutes, to financial information, policies and procedures, between official sites and those of ‘watchdog’ groups, a wealth of info is out there if you know where to look.
Official Government / Agency / Organization Websites
The City of New Castle, Delaware
Site offers: Meeting Schedules (with agendas posted at least one week prior); links to video of all city council, committee and board meetings; meeting minutes (after approval, generally one month after the meeting took place); the city charter and code; info on city offices, departments, boards and commissions; contact info for city elected leaders; etc.
Municipal Services Commission of the City of New Castle
As a public utility, MSC is subject to most aspects of the Sunshine Laws.
Site offers: Commissioner meeting agendas and minutes; regular reports on water quality, consumer confidence and MSC finances; info on utility assistance; contact info for staff and the commission; its own FOIA form; and more.
New Castle City Police Department
As government agencies, police departments are generally subject to FOIA, though supplemental laws such as LEOBOR (the Law Enforcement Officers’ Bill of Rights) do modify some aspects of how the police must comply with requests.
Site offers: annual and monthly reports on department activity; annual transparency reports tracking complaints, use of force incidents and more; info on the department’s accreditation; and how to make a citizen complaint.
Colonial School District, serving the City of New Castle & surrounding areas
Site offers: info on the board of education, including meetings and minutes; the district’s strategic plan; budgets and financial information; and its own FOIA form.
Trustees of the New Castle Common
Though it is not a government body, as a “quasi-public” non-profit managing assets on behalf of the public, TNCC regularly publishes records and reports of its proceedings and finances. The Trustees do not respond to FOIA requests. While the state AG’s office has held that TNCC should, that finding ‘does not carry the force of law,’ and has not been tested in court.
Site offers: meeting minutes going back 20 years (with the usual one-month lag for approval); election info and forms; a list of parcels of property owned by the Trustees; financial statements incl. IRS form 990; and the Charter and Bylaws (not including the Policies and Procedures documents that accompany the bylaws).
County of New Castle, Delaware
Site offers: County Council meeting agendas, minutes, resolutions, etc.; info on the proceedings of county boards and commissions; oversight and complaint resources for county departments and agencies; links to county auditors and ethics officers, as well as the Fraud, Waste and Abuse hotline; county code; and more.
The State of Delaware and the federal government have too much info on their sprawling networks of websites to be reasonably summarized here. However, if the Sunshine Law requires a certain record to be kept and available to the public, it is probably already on a website somewhere for you to discover!
Watchdog/Oversight Projects & Orgs
To end this list, here are a few helpful watchdog groups that provide citizens with useful information about government and other major institutions…
Delaware Coalition for Open Government (DelCOG)
A state-level government watchdog pushing for enhanced accountability in state and local governments. Currently leading the charge to establish an Inspector General’s office for Delaware.
League of Women Voters of Delaware
A nonpartisan political organization that encourages informed and active participation in government.
Common Cause - Delaware
Working to connect citizens on behalf of open government, transparency and accountability, with a focus on the distorting effect of money in politics.
OpenSecrets.org
State and national campaign contribution reporting, tracking of lobbyists and interest groups, data on elections and fundraising, and more.
ProPublica
Non-profit investigative journalism - national but often partnering with local journalists for stories in particular communities - with a focus on government and corporate malfeasance. Maintains a helpful Non-Profit Explorer tool, a Tracking PPP tool showing every company in the US that received a PPP loan, and whether it was forgiven, and much, much more. (City Topics is a member of ProPublica.)
Growing Secrecy Limits Government Accountability
By David Cuillier, guest columnist
When I started covering crime as a reporter for small newspapers in the 1980s, I was assigned to walk to the police department lobby each morning and look through all of the previous day’s police reports, clipped to a board on the counter, containing all the details laid out for anyone to see. We were able to report to the community each day on the major events in town – to explain why people heard sirens, or saw a smoke plume.
By the 1990s, the clipboards were moved out of the lobby, so we asked at the counter to see them. Then we were told we had to review them with the sergeant on duty. Then we were told we couldn’t see them – we had to ask the police what they felt was newsworthy. Then we were told to submit a public records request, and wait for days or weeks – if we got them at all.
For decades, journalists and civic activists have lamented the increasing secrecy of government – the times, they were denied government information, particularly from public records requests. Reports have shown secrecy getting worse at the federal, state and local government levels.
But those were usually anecdotal reports of problems. Now, there is data that brings those refusals into focus and which provides a fuller picture of government agencies hiding their work from the public they ostensibly serve.
Openness benefits people and society
The stakes, and potential ramifications for everyday people, are significant.
Access to government records helps people research their family history, identify quality schools for their children, monitor the cleanliness of their drinking water, background-check their online dates, and hold their local town officials accountable.
And there are clear benefits: Open records are proven to lead to less sex-offender recidivism, fewer food service complaints, increased trust in government institutions and reduced corruption.
Stanford University professor James Hamilton calculated that for every dollar spent by newspapers on public records-based journalism, society realizes benefits worth US$287 in lower taxes and saved lives.
Less transparency year after year
My analysis of government agencies’ compliance with public records laws through 37,000 federal Freedom of Information Act, or FOIA, requests submitted through the nonprofit MuckRock.com shows that a decade ago, if you asked the federal government for a public record, you might get it about half the time – which isn’t great. Today, you might get it about 12% of the time, and the trend is steadily downward.
The trend is similar though less uniform among state and local governments: You might receive what you ask for two-thirds of the time in Idaho or Washington state, but only 10% of the time in Alabama.
Every year in mid-March, since 2005, national Sunshine Week has promoted the right of people to acquire public records and attend public meetings. The Joseph L. Brechner Freedom of Information Project at the University of Florida, where I am the director, has conducted research and education about access to government information for nearly 50 years.
Our research indicates that U.S. government secrecy has never been so prevalent.
Increasing secrecy isn’t tied to any particular president or regime. The administration of President Barack Obama, who declared on his first day of office his intent to be the most transparent president in history, was slower to respond and less likely to release information than George W. Bush’s administration.
President Donald Trump’s administration was more secretive than Obama’s, and transparency continues to slide under the Biden administration.
Data tells a piece of the story
According to annual data collected by the U.S. Department of Justice, federal agencies have become more secretive over the past decade:
• The prevalence of people getting what they asked for through FOIA requests declined from 38% of the time in 2010 to 17% in 2022.
• In 2010, about 13% of the time, federal agencies would reply to FOIA requests by saying they couldn’t find records pertaining to the request. By 2022, the rate of that type of response had increased to 21%, which officials often attributed to outdated record management systems incapable of keeping up with the massive amounts of electronic records, particularly emails.
• Backlogs, where requests languish beyond the 20-day legal requirement for completion, have nearly doubled since 2010, from 12% of total requests to 22%. The average number of days it takes to process simple requests, which require little staff time and a smaller volume of records, has doubled since 2014, from 21 days to 41 days, according to Justice Department reports.
• While some secrecy is necessary to protect national security, the Government Accountability Office reported that the use of FOIA Exemption (b)(3), which allows federal agencies to deny records if another law makes the information secret, has more than doubled during the past decade, even though the number of requests only increased by a third. That includes denying people’s requests about properly withheld intelligence information. But it also includes refusing to release information on topics of great public interest, such as defective consumer products and employment discrimination cases.
Even if agencies grant requests, they present other obstacles. A.Jay Wagner of Marquette University and I surveyed 330 people who requested records in the U.S., finding that high fees to copy documents discourage people, such as journalists, nonprofits and members of the public, from seeking information in the public interest. And some agencies’ public information officers obstruct public access to information. They limit access to the people and documents most important for government transparency and accountability.
Research-based solutions
Just as researchers have identified secrecy spreading through the government, recent studies offer ideas for possible cures.
Independent oversight offices with enforcement power, such as in Connecticut, Ohio, Pennsylvania and more than 80 nations, provide private citizens an alternative to litigation. Instead of having to hire a lawyer to sue the government for what you are entitled to, the independent agencies will review your case, make a determination and force the government to provide you the information.
The federal FOIA Advisory Committee, working since 2014, has provided 52 recommendations for Congress and federal agencies to improve transparency in the United States, crafted from experts and researchers. A subcommittee I co-chair for the current term is close to finishing its assessment of how well the recommendations have been implemented, with results to be released in May 2024. Our preliminary assessment indicates that there is a lot of work left to do, and that Congress and government agencies have ignored many of the recommendations.
Guest columnist David Cuillier, Ph.D. (he/him), is director of the Joseph L. Brechner Freedom of Information Project at the University of Florida and co-author of “The Art of Access: Strategies for Acquiring Public Records.” He can be reached by email.
Freedom of Information: Celebrate & Advocate
Here are just a few ways you can press for more transparent and accountable government and institutions…
Join, Support or Volunteer for one of the watchdog organizations above.
Follow and support local, independent media - and expose yourself to multiple sources and viewpoints. That makes it easier to recognize opacity and bad faith arguments on all sides of an issue.
If something in the news, on social media, or in the rumor mill sounds wild, see if it can be easily fact checked by utilizing one of the links above.
As a fun exercise, submit a FOIA request to obtain what records a given agency or government has about or mentioning you.
Visit SunshineWeek.org to find more articles, cartoons and even a few games to help start a conversation about these issues with those you know.
Spread the word about Sunshine Week and citizens’ rights under Freedom of Information Laws by sharing a post on social media.