DELAWARE WATCH
holy moly,
we are going to have to ask for a change in the Delaware FOIA laws this General Assembly session.
Gaps like this are inexplicable, unacceptable and can be repaired with addtional language.
After all, we are expecting the balance of power to be going our way in terms of open government legis already on the table.
No more FOIA expeceptions.
Nancy,
Gaps like this would not need to be "repaired" if we had ethical people administering OUR government. Gaps like this would not exist if the government started serving and answering to citizens, for a radical change. Obviously we do not have such ethically-minded individuals. We have people who believe they are not accountable to the people who pay them, whom they are supposed to be serving.
It is beyond belief that these government agents owe us less accountability at law than Delaware corporations owe their shareholders. It shocks my conscience that the holder of a single share of stock in a Delaware corporation has more legal rights to access books and records of that corporation than a Delaware citizen has to see the documents of their own government. What is even more bizarre is that such corporate shareholders need pay nothing for this, beyond the price of their share, i.e. they aren't forcibly made to pay for the corporation's activities or fiduciary duties owed them.
Taxpayers, however, are FORCED literally at the point of a gun to pay taxes (if you think I am being hyperbolic, stop paying your taxes and see if men with guns don't eventually show up for you).
The presumption should ALWAYS be disclosure to the public, barring any very extraordinary circumstances such as personal health care records of employees. Otherwise, everything should be fair game. The presumption should not be : dig in your heels and deny anything/everything, fearful of a disclosure slippery slope.
Perhaps we need to look to the common law of corporate governance, so well established in Delaware, and start applying those stringent fairness principles to public officials. Maybe we should have statutory fiduciary duties imposed upon every officer or employee of government. These are duties such as loyalty, care, candor, and, more generally, good faith dealing. Why are corporations held to a higher standard than our government? Or more succinctly, why does our government have less duty to serve the citizenry than any corporation does in this the most corporate-friendly jurisdiction on earth?
In my view these officers of government who resist disclosures should be presumed to have something to hide and should automatically be held to a higher standard of care, if not fined for foot-dragging or nonfeasance.
As I have proposed numerous times publicly, as a candidate or otherwise, this state needs a very independent Public Information Advocate who is directly responsible to citizens and is duty-bound to make any and ALL information, for which we the public foot the bill, available without the slightest effort beyond internet access or a simple one-stop, uniform request document.
For a short synopsis on fiduciary duties :
http://www.fhe.com/files/tbl_s50...-
bork102805.pdf
Including the GA in FOIA would be welcome, but it is not enough.
The FOIA law has one hell of a long list of exceptions - too many to digest in a single sitting. Some of them may make sense, but most seem at best ridiculous, or at worst, corrupt. The whole list should be scrapped and each one debated anew.
Any pols looking to "reform" something can start with the FOIA law.
Dana:
Don't you work for Family Court? Are you affraid of any retaliation? Anyway keep up the good work!
Great observations by Mr. Nixon above. It is indeed ridiculous: a shareholder of a Delaware corporation has the right to demand inspection of corporate books and records, and, if the corporation does not comply, the shareholder can file suit in the Court of Chancery to compel inspection.
But Joe (or Josephine) Average is at the mercy of the Attorney General's Office and their tendency to interpret FOIA as narrowly as possible.
Mike Tupman is a tool. He also is assigned to give legal advice to the the State Police - and, word has it, at one point took the position that State Troopers could not be subpoenaed like any other citizen, but rather an attorney or litigant wishing to subpoena a Trooper had to go through a convoluted process. So much for the concept of "compulsory process."
OK, Dana, I'm with you on your anger over the process. But I have a question - why are you so interested in knowing what CJ Kuhn is up to, travel-wise?
Might it have something to do with her trip last year to the Republic of Mauritius?
http://mauritius.usembassy.gov/
p...r_12212005.html
If so, it looks like the trip was at least partly funded by an NGO:
"The Women’s Legal Action Watch, a non-governmental organization was the recipient of the Department of State’s Democracy and Human Right Funds and received a grant of $15,000 to carry out the consultation visit. The grant funded the cost of travel and lodging for two of the Delaware court officials as well as the printing costs of the Mauritius Family Court report. This project, which will result in the development of a family court system in Mauritius, will help facilitate and simplify family court legal proceedings and alleviate the backlog of other cases before the Mauritius judiciary."
Forgive me folks if I don't answer your questions or respond w/ any depth. A plague has struck my household and I was the last to get it. It's a killer.
"Gaps like this are inexplicable, unacceptable and can be repaired with addtional language."
Agree. I showed all this to Sen. Peterson and she was flabbergasted.
"The presumption should ALWAYS be disclosure to the public..."
Tyler, I agree totally. In fact, one of the criticisms I have is how the AG's ruling ignores the statutory presumption that FOIA requests should be honored:
""Public body" means, unless specifically excluded...."
It seems rather ad hoc to me to ignore the "unless specifically excluded" clause on grounds that are mentioned nowhere in the statute:
the "FOIAs definition of a public body excludes Delaware courts since they were established by the Constitution."
Where does the "were established by the Constitution" criterion or any language like it appear in the statute? Nowhere that I can tell.
This criterion is an inference made by the AG's office. But the inference ignores the ruling "unless specifically excluded" clause found in the statute itself.
This criterion also ignores other explicit language mentioned in the statute:
"Public body" means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to...
Apparently, the AG's office has no compunction about inventing a limitation not stated in the FOIA statute.
Let's not forget as well that this invented criterion occurred in service of protecting the DE Court system's secrets. I'm sure the AG's office knows who butters their bread.
"Including the GA in FOIA would be welcome, but it is not enough.
The FOIA law has one hell of a long list of exceptions - too many to digest in a single sitting. Some of them may make sense, but most seem at best ridiculous, or at worst, corrupt. The whole list should be scrapped and each one debated anew."
I agree sort of. If I am correct, the statute does include everything not specifically excluded. The problem in this case seems to be the tendentious reading the AG's office gives the law.
"Don't you work for Family Court? Are you afraid of any retaliation?"
Yes, I do work for Family Court and I'm not terribly afraid of retaliation.
In this case, as far as I can tell, the Court has followed the advice of their attorney (AG's office), which as a govt agency they are probably bound to do.
"OK, Dana, I'm with you on your anger over the process. But I have a question - why are you so interested in knowing what CJ Kuhn is up to, travel-wise?
Might it have something to do with her trip last year to the Republic of Mauritius?
http://mauritius.usembassy.gov/ p...r_12212005.html"
I have no problem w/ the Mauritius trip. My understanding is that it was a goodwill mission to help the tropical island nation establish a Family Court system. I have no problem w/ that even if it came out of DE funds.
My understanding is that the trip was paid, at least in part if not altogether, by the Mauritian govt. I also understand that 3 Court officials traveled there: Chief Judge, former Court Admin, and the current Dir. of Special Court Services.
Dana,
The Scourge is here too & I am doing my best to get it out of my system. Now I have to learn how to file a FOIA.
Dear Friends,
Some years ago the State of Delaware purchased land in Sussex County, east of Route 1 at the end of Wolfneck Road (between Lewes & Rehoboth). I read that it was to preserve the land & keep it safe from development but now I see that it may not have been the motivation at all. Maybe there was a hidden agenda.
I understand from David Small of the Delaware Department of Natural Resources and Environmental Control (DNREC), that the Sussex County Wolfneck waste treatment facility was already there when the state bought the surrounding land. Now Small tells me that DNREC wants to use that state-owned land to increase the size of the Wolfneck treatment facility-- they want to apply treated waste in the form of spray to this virgin land.
Be sure to note that this location is very close to the waterfront.
Civic groups upstate & elsewhere in Delaware are very upset about this because it sets a terrible precedent of using state-owned lands for waste which would only serve to have you & me pay for more development on the coast.
The developers and realtors seem ecstatic about it.
I am advised by members of some groups to file a Freedom on Information Act request about this supposed “deal” which has already been made without the public being advised. I shall.
What is YOUR opinion?
From Joan Deaver, Pres., Citizens for a Better Sussex County (CBS), 19208 Plantation Rd., Rehoboth, DE 19971
302-645-6657, CELL 302-519-1973
"I am advised by members of some groups to file a Freedom on Information Act request about this supposed “deal” which has already been made without the public being advised. I shall.
What is YOUR opinion?"
Absolutely. Do it. Also consider getting any official records and/or newspaper records regarding this:
"I read that it was to preserve the land & keep it safe from development...."
Proof of that assertion would arguably be evidence of the state engaging in fraud.
Tyler,
"Gaps like this would not need to be "repaired" if we had ethical people administering OUR government. Gaps like this would not exist if the government started serving and answering to citizens, for a radical change. Obviously we do not have such ethically-minded individuals. We have people who believe they are not accountable to the people who pay them, whom they are supposed to be serving."
Outstanding !!!
Tyler,
"These are duties such as loyalty, care, candor, and, more generally, good faith dealing. Why are corporations held to a higher standard than our government? Or more succinctly, why does our government have less duty to serve the citizenry than any corporation does in this the most corporate-friendly jurisdiction on earth?"
It appears the voters of Delaware don’t care about the foundation of the American Constitution nor the Delaware Constitution.
When I challenge legislators who sit on charter school boards, the reply are they are benefiting monetarily therefore there is no conflict of interest. I think you and I can agree there is a thing call moral conflict of interest. Though their votes within that organization doesn’t create a conflict however their votes in Dover that equates to more funding for their school then it is a moral conflict of interest.
The moral ethics of our state government is at an all time low and until the people stand shoulder to shoulder and demand change it will not happen. You, Dana and a handful of us are no threat to the status quo in Dover. We are just tolerable pain in the asses.
With today’s technology there are really no barriers in providing the information we demand. The state will never lay down their cards because the truth will be expose the so call public servants (elected officials) are actually the ones who are being served and the people are that actual servants. As in days of old the peasants have not voice and the tax bite to serve our masters are still upon us. The game is keep the pockets of the rich content, feed the poor and greases the palm of the so called minority leaders and the middle class will foot the bill.
As I said before the election George Bush is a screw up however he is not responsible for the misery caused by our local government. Open government will be the only way our so called democracy will survive.
Hope to see you back on the ballot
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