In Washington State, state lawmakers have quickly introduced and passed legislation, Senate Bill 6617, within 48 hours, I suppose to match Congressional Republicans in efforts to pass ill conceived laws. No, it was an effort to evade a January court ruling that found the state legislature has been illegally withholding emails and other important documents from the public in violation of that state’s Public Records Act. There has been a huge public backlash in Washington State to the passage of the bill, and many, including all of the state’s newspapers, are calling on Washington State Governor Jay Inslee to veto the bill.
8 newspapers across Washington are running front page editorials Tuesday slamming the state Legislature for exempting itself from the voter-approved Public Records Act.
It's such a big deal that The Seattle Times is running its first front-page editorial in 110 years pic.twitter.com/LZLMnAcJq8
— Mike Rosenberg (@ByRosenberg) February 27, 2018
Matthew Albright of the News Journal pointed out in retweeting the above on Twitter that Delaware lawmakers have exactly this exemption. And as he says “it is as bullshit as these editorials suggest it is.” Here is a nice News Journal article on the application of and exemptions under Delaware’s Freedom of Information Act from back in 2016.
State Representative John Kowalko, long a champion of opening up access to emails and documents and removing the exemption for the General Assembly, is quoted in that article and indeed has a bill before the General Assembly right now (HB72) that would open up the University of Delaware and Delaware State to FIOA. But it remained in committee all of last year, and I do not see much momentum to move it forward, nor any to remove the General Assembly’s exemption. That is bullshit.
Senator Bryan Townsend did raise some valid points and objections in opening up access to all lawmaker’s emails:
With all due respect: DHSS can redact FOIAs that have health information; DoE can redact FOIAs for FERPA; DPSHS can redact state security issues. Why can't legislators have more specific exemptions, instead of a blanket one?
— Matthew Albright (@TNJ_malbright) February 27, 2018
I agree that cost is a factor, and citizens (particularly us journalists, who are FOIA power-users) should not FOIA frivolously. But we've rightly decided that it's worth paying for the public's right to know, and I don't get why legislators are different.
— Matthew Albright (@TNJ_malbright) February 27, 2018
One difference (in theory) is that legislators are directly accountable to voters. Ask us questions, then vote or not vote for us. Executive branch agencies are not directly accountable to voters, and so FOIA monitoring is a tool. But incumbency advantage might trump theory. https://t.co/QQG8a9r5MX
— Sen. Bryan Townsend (@BryanTownsendDE) February 27, 2018
And in fact that does happen sometimes, but usually only on policy/legislation/votes, and not on constituent services. I'm curious — how much $$$ is spent on FOIA compliance (including review/redaction) in other states, particularly those with gold-standard FOIA laws?
— Sen. Bryan Townsend (@BryanTownsendDE) February 27, 2018
I appreciate Townsend’s concerns here, and appreciate his engagement on this topic in a public forum. As Albright mentioned, how about we exchange out a general exemption for the General Assembly with a narrowly tailored one that allows for privacy of constituent information and other areas of concern. And I am sorry, but cost should not be a concern. Open Government v. Cost, guess what? Open Government wins, everytime.
More than a little bit sick of the famed “well then don’t vote for us” ploy, it’s a BS diversion that does an end run around Why don’t you do what’s right and needed?
On the cost issue: FOIA allows government to charge a requestor for both copying and reproduction costs as well as staff time spent processing and redacting. Legal review is the only time that can’t be charged. State agencies deal with this every day and it’s considered part of the mission. If they can do it so can Leg Hall. I like Townsend but he’s being intellectually dishonest or intentionally obtuse here.
Yes, I’ve made this argument too. If other agencies can do this, there is no real reason why legislators can’t. No doubt legislators are having more personal conversations on email with their constituents than other agencies might. But as you point out, many agencies are in the business of dealing with sensitive information from constituents (and in some cases from companies) and can manage. It is a bigger job for legislators, but still worth doing.
I was listening to the City of Newark Council debate last night on Renee Bensley’s recommendation that they move to city email addresses so FOIA can be competently performed (Renee is the City Secretary and is the FOIA liaison.) Council decided they don’t want any emails FOIA’d. They are going to direct lobbyist Rich Armitage to take this to the legislature for municipal exemptions to match the Assembly’s. They also didn’t appear to realize that their emails to constituents all are currently open to all under the FOIA law.
Yes. I dare say that the Department of Health and Social services deals with an exponentially greater volume of constituent issues that require confidential handling than a state legislator does.
Part of the problem, and we saw this in the Chip Flowers v. Markell thing, other state or executive agencies will shield those emails by putting legislators on them. That is a HUGE concern!