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Green Delaware Urgent Action Alert #79

Round 2: Attack on FOIA

Your comments needed.

Related Items:

Port Penn, DE, November 27, 2000. (We apologize for the excessive length
of this Alert. We try to keep them to one page but in this case we
couldn't.) On Oct 25, in Alert #78 , we reported on DNREC plans to charge
"administrative fees" for responding to FOIA requests. The good news is
that thanks to the strong response to the Alert, DNREC has informally
conceded that they can't get away with it and will have to back off to some degree.
To nail this down we ask EVERY READER TO SEND A QUICK EMAIL
to subaker@state.de.us, with a copy to rminner@state.de.us and greendel@dca.net.
(Ruth Ann Minner is the Governor-elect.
A spokesperson for her Transition Team said she had "not
yet considered" this issue.) The official comments period closes on Wed.,
Nov 29th at 4:30 PM, but send comments later if necessary. Our
effectiveness depends on the number of people who respond to the
information we provide. Comments can also be faxed to 302.739.6242.

We testified at an Oct 26th public hearing, at a Budget Office hearing on
DNREC, and we have read the entire file as made available to us by
DNREC. Excerpts from our testimony are on page 2. What we found:

How about the law, guys? The Delaware FOI law says "...it is vital that
citizens have *easy* access to public records in order that society remain
free and democratic.", but DNREC's draft *regulation* proposes only
"reasonable" access, a lower standard not consistent with the law.

Who are they really listening to? DNREC has an "interested parties mailing
list," not disclosed at the hearing, that includes representatives of the
Delaware Petroleum Council, DuPont Co. (2), Delaware State Chamber of
Commerce, Potter, Anderson & Coroon (a law firm representing "all big
business"), Cabe Associates (representing developers), as well as a few
citizens.

Bad numbers. DNREC has been claiming that only "one percent" of requests
come from citizens. The agency only had data from 1991 to the first half
of 1996. It's calculations for these years showed that requests came from:
citizens and environmental/community action groups (7%), media (1%),
developers/real estate agents (1%), insurance Cos. (2%), "corporations"
(7%), academic and out-of-state (2%), "attorneys" (8%), and environmental
consultants (70%) (The total is 98%, presumably due to rounding). The
number of requests went from 200 in 1991 to 871 in 1995.

Other FOIA legislation. Common Cause has been promoting a bill, written by
lawyers for the News Journal, to strengthen the FOIA in other
respects. This bill has problems, and is hysterically opposed by the
League of Local Governments. We think there is a need for legislation to
correct various FOIA problems, and hope to work with Common Cause and other
orgs on this in the coming legislative season.
While DNREC says the regulation is aimed at attorneys and consultants,
those objecting are primarily citizen groups, including Green Delaware,
Common Cause, 7 & 40 Alliance, Surfrider Foundation, Mid-Atlantic
Environmental Law Center (3 sets of written comments), Del. Audubon, Sierra
Club, New Jersey Environmental Federation, Green Party of Delaware,
Essential Action, Bear-Glasgow Council of Civic Organizations, Citizens
Coalition for Tax Reform, Wilmington River-City Committee, Stop Metachem
Products, Del. Citizens for Clean Air, and Princeton Woods-Huntclub Hunt
Home Owner Association. Many notable individuals include Rashmi Rangan
(Community Reinvestment council), Dr. William Boyer (author of "Governing
Delaware"), William and Joan Deaver (Citizens' Coalition), Anna White
(international anti-tobacco activist), Rita Farrell (distinguished
journalist) Sandy Poppiti (candidate for Mayor of Wilmington), and Phillip
Bannowsky ("...one can only conclude that DNREC is deliberately impeding
transparency and accountability."). Even the Gannett News Journal (whose
editors hate Green Delaware and black out our work as a matter of course)
opposed the proposed regs in an editorial. On the other hand, the
semi-official, industry-influenced Delaware Nature Society wrote: "Overall
this is an excellent document and worthy of our strong support..."

In-house objections. DNREC already has a set of EPA-approved Hazardous
Waste Disclosure Regulations. In a Sept. 5, 2000 internal memo, a DNREC
official identified 6 "issues of concern," areas in which the proposed regs
could weaken access to hazardous waste records, "thereby jeopardizing the
state's hazardous waste authorization."

Passing the buck. DNREC is, in effect, blaming the Delaware General
Assembly, and particularly it's Joint Finance Committee, for the proposed
regulation. The agency says it asked for a full-time position to handle
FOIA requests, but got only a half-time position. So, it needs the fees to
raise money for one-half a paralegal's salary. Manipulative byplay between
legislators and bureaucrats isn't unusual, but we doubt legislators will be
pleased by this ploy on DNREC's part.

Green Delaware recommendations to DNREC (Highlights only. This is a
composite of the best suggestions we saw):

DNREC should adopt a FOIA regulation consistent with Delaware law, and
providing all the rights to requester now provided by USEPA policies and
DNREC's Hazardous Waste Disclosure Regulations. These include:

"The [Department] will make every reasonable effort to assist in the
identification and description of the records sought and to assist the
requestor in formulating his request."

"Not later than the 10th working day after the date of receipt of a request
for records, [the Department] shall be responsible for notifying the
requestor that the request is granted or denied."

Records shall be made available within 10 days of the determination (total
20 days from date of request, absent justified delays).

An administrative appeal procedure should be established for both denials
of requests for records and determinations of confidentiality.

"Attorney fees and reasonable litigation costs may be assessed against the
Department ...in the event the requestor substantially prevails on judicial
review."

"The fee chargeable ... shall be reduced or waived ... if ...(i) disclosure
of the information is in the public interest because it is likely to
contribute significantly to public understanding of operations or
activities of government; and (ii) is not primarily in the commercial
interest of the requestor."

For those signing a statement declaring that fees would be burdensome or
would impose a hardship, all administrative and other fees shall be
waived. Copying charges shall be waived up to fifty dollars, and above
that shall be charged at five cents per page.

"'requestor' means any person who has submitted a request for information"
[not limited to 'Citizen of the State.']

Records not maintained on-site by DNREC (such as emission records
maintained by facilities under the Clean Air Act), but required by law or
regulation, are available under the Delaware FOIA.

Records shall be available by mail when practicable (such as copies of
permits).

Excerpt of transcript of Green Delaware testimony (Alan Muller):

"..So when we hear that fewer than 1 percent of the [FOIA] requests come
from individuals and that most of them would fall under an exemption of
$15, it seems to me that that does not apply to the experience of Green
Delaware. And it seems to me that the proposal, as it stands, not only
poses a threat in a general sense to the intent and the purpose of the
[FOIA], but it poses a direct threat to our organization. And so we feel
that the regulation as it's proposed is completely unacceptable. ... I'm
told that the intent of the regulation is to raise money for DNREC ...this
suggests that the Department is viewing the [FOIA] ... as a
revenue-generating activity. And I suggest to you that nothing could be
less appropriate than that. ... It's one of the fundamental tools that
citizens have, and particularly activists in community-based organizations,
to keep track of what their government is up to or what is has been up
to. And that's the fashion in which we use it."

"This regulation is supposedly directed at ... parties using the FOIA for
commercial purposes. And yet ... Every single witness has been a
representative of a nonprofit ... or activists expressing concerns with the
provisions of this regulation .... if ... [it's] intended to do what we're
told it's intended to do, [why] are we not hearing a word from those that
might be impacted negatively by it?"

Special thanks to John D. Flaherty, whose primary employer is Common Cause
of Delaware, for his many years of work on behalf of Freedom of Information.

Again, please take a moment and send your comments. If inclined, you can
just say you agree with Green Delaware's comments.

Let us know what you think. 

Email us at 

GreenDel@dca.net

or contact
Alan J. Muller, Exec. Director
P.O. Box 69
Port Penn, DE 19731
302-834-3466 Voice
302-836-3005 FAX

Let us know what you think. 

Email us at 

GreenDel@dca.net

or contact
Alan J. Muller, Exec. Director
P.O. Box 69
Port Penn, DE 19731
302-834-3466 Voice
302-836-3005 FAX

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All work is done by volunteers and members including this website. 

This page was last updated on November 29th, 2000.
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