Flaws in Delaware's Open Records Law Keep Information out of Public Hands

Illogical exemptions and poor implementation appear to be preventing Delaware's Freedom on Information Act (FOIA) from fulfilling its purpose to provide the public with access to important government-held health and safety information. Delaware's News Journal conducted an investigation into the function of the state's open records law and found significant problems and loopholes. The News Journal recently submitted several FOIA requests to assess the effectiveness of the state law. The newspaper requested air quality data and emission-testing results from power plants; odor-complaint records and monitoring reports from landfills; and waste-management plans from farmers. While the agencies provided thousands of pages of documents in response, most of the response consisted of basic bureaucratic forms, which revealed little about the issues being researched by The News Journal. The documents did, however, uncover some serious public health hazards that hint at a broader problem, including shallow pits filled with rotting cow and chicken carcasses that threaten drinking water supplies. Delaware's FOIA has become riddled with exemptions that withhold documents and close meeting doors to the public. These exemptions include information on concealed-weapons permits, criminal files, and driver's licenses. Also exempt is information on farm manure and fertilizer management. In 2000, state lawmakers created the Nutrient Management Commission and declared records on these major sources of water pollution off-limits to the public. This exemption now prevents concerned citizens from finding out if the tons of animal waste generated by chicken farms in the state annually represent a threat to their drinking water. Other problems arise from poor implementation by local and state agencies. One woman, who was curious about the position of town manager in her area, was inappropriately denied a copy of the contract, which should be publicly available. The Delaware Solid Waste Authority has used a lawsuit between a landfill contractor and the agency as grounds to deny requests about emissions and odors from the landfill. Citizens contend, however, that the lawsuit is about day-to-day operations at the landfill and should not interfere with their right to information about methane and other gases released near their homes. Other states facing similar problems of excessive loopholes and poor implementation are attempting to strengthen their FOIA laws. For example, Arizona is considering legislation that would create a state funded 'public access counselor' to provide expert advice to citizens and state officials regarding requests for state-held information. Additionally, there are several national bills before Congress that would strengthen federal FOIA law.
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