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State Senator seeks common ground on proposed FOIA change

Roman Battaglia
Delaware Public Media

Some bills won’t make it to the finish line before lawmakers finish their work on June 30th.

That includes Senate Bill 155, which would make changes to the state’s Freedom of Information Act – changes that raised alarms with open government advocates.

Delaware Public Media's Roman Battaglia talked to its sponsor, State Sen. Kyle Evans Gay (D-Talleyville), about the bill, the backlash and her decision to hit the brakes on it for now. 

The Freedom of Information Act provides the public a tool to access government documents. And Gay’s legislation seeks to make changes to Delaware’s version, including clarifications to the appeals process if a FOIA request is denied. 

But two sentences in the bill alarmed open government advocates.  They allow a government agency to deny a request construed to be abusive or disruptive.

Gay explains that’s because sometimes individuals makes requests that would take years to process.

“It’s likely that the person bringing the request is doing so with all good intent to seek out public information that they’re entitled to — but they might now know they are asking for something incredibly broad,” she said.

Gay is offering an amendment requiring agencies to provide a factual reason denying a request as unreasonable. But the concerns raised prompted her to put the bill on hold until next year.

She plans to reach out to open government groups, journalists and the public to find out what needs to change before moving forward, but maintains changes, such as streamlining and clarifying the petition process if a request is denied, are worthwhile.

“There’s also some great stuff in this bill that would help requesters that also won’t move forward," said Gay. "And so, what I’m really hopeful is that we have those productive conversations in the off season, that we have them quickly — so that we’re ready in January to come back with a bill that reflects the interests and the sign off and the cooperation of stakeholders.”

Full Transcript:

Roman Battaglia - Delaware Public Media: 

Thank you for taking the time to talk with me today.

State Sen. Kyle Evans Gay:  

Yeah, absolutely. I'm happy to talk about this bill. I'm glad there's interest in it.


Why don't you tell me, you know, in your opinion, why you think this bill was needed? And you know, what caused you to introduce this bill in the first place?


Sure. Well, the origins of this bill, I think, are really interesting, because having been as a civil litigator, and actually not only litigating FOIA, but also then working with local FOIA coordinators, and helping them understand their obligations under the law, also being a litigator who's represented individuals who are seeking documents from the government. 

So I came into this job with probably more experience with that with FOIA than maybe an average new legislator, and had some thoughts about how we could modernize the statute. One of those included streamlining the code when it comes to the appeals process, because it was just rather confusing. And as we know, we want for it to be as accessible as possible to someone reading it. So they understand how to navigate the process. 

And when I approached the attorney general's office and said, Hey, I have some ideas about what we can do with FOIA. They said, actually, we've also been looking at the statute and have some ideas, not only about the appeals process, which we had parrot era agreement on, but to address other issues that we've seen as we've been managing the petition process, which is the Attorney General's role. 

So it was really both parties coming together to say, what, what we could do differently. And then from that point, actually engaging the Delaware Coalition for Open Government to get their opinion, and see what they thought about the proposed bill. And through that process, actually got suggestions from them. And some of those actually made into the bill as well. 

My hope was to create, you know, a balanced product that addressed kind of different stakeholders needs and continue to push for a forward, it kind of draw that neutral line that we always hope to draw, to not tip the balance in favor of any requester or public body, which I think is a good goal for FOIA.


One part of this bill is obviously allowing certain certain requests to be denied based on the fact that they're, I forget the exact terms, but that they're absurd or really intrusive or-


Absurd sounds like a Twitter word. But no, so it's overly broad. Sorry, unreasonably broad, unduly burdensome, intended to disrupt the essential functions of the public body, or is abusive.


So how, I mean, I don't know if you talked to the attorney general's office, but how many of these requests do you get? Do they get regularly or the government in general per year?


So that they I don't, I think as you should ask them as they have that number, I don't see how they would though, because as with all FOIA, it's dispersed, right? So any public body can get a FOIA request, not all of those are going to make it to a petition process that the AG would respond to the AG does respond to FOIA requests on behalf of some agencies. 

But a lot of what we see or at least I saw, was really at the local level, where you have these requests that are incredibly broad, and you have a small town that maybe has five employees, and it would take one employee over a year to satisfy the request. And I think what's really interesting about that, is it's my opinion that in a lot of those cases, it's likely that it's reasonable that the person bringing the request is doing so with all good intent to seek out public information that they're intended that they are entitled to. But they might not know that they are asking for something incredibly broad. And so that's what the amendment does. In this bill, the amendment that I entered, that I introduced, says that if we're going to if a public body is going to rely on say, unreasonably broad as a means to deny the request, that they have to state the factual basis as to why they're doing that. 

And I truly believe that this will lead to better communication, and better access for requesters. Because if you come to, you know, DNREC and ask for something that is going to take them a year to produce. Well, if you know that that's the reason why you're being denied. You can work with them to say, Well, actually, this is exactly what I'm looking for. How can we work this out? I mean, I view it as a way to introduce communication and cooperation between requesters and agencies. 

I know that hasn't been the the experience of a lot of people. And so I'm sensitive to why individuals are concerned with that language. But of course, as I've said before, you have to go back to the case law, you have to go back to the precedent and these words were chosen specifically, because they are based on because there's a foundation in law for this, and we're really creating this legal exception where it hasn't existed before.


Where do those legal precedents come from with their specific cases that were litigated in Delaware that caused those terms to be defined?


So we can look to there's, well, there's, if this were to go up to the court, we can look to a number of different sources. Within Delaware, we can look to case law that has interpreted these words in similar words like it. And so something that is unreasonably broad in this circumstance, you could look to a case law and maybe perhaps another area and understand how the court looked at that language, the factors they balance, and that's the job of our judiciary is to create that case law around there. 

The other key piece of information is looking to other states that have similar language and understanding how their courts have interpreted that language. A third place to look is always the legislative intent. And we have such a fulsome record here, the legislature, especially in the digital age, as you know, committee hearing statements for statements and other places where we speak to this bill, the courts will always look to legislative intent, if there is ambiguity, but all of that you never get there. In less there's ambiguity. Right. And, and the key part of Jolla in Delaware. And I mean, the key point of FOIA laws throughout our country, is that where there is ambiguity, it is always construed in favor of the requester. 

And this is a benefit that we've built into this law, because we understand the importance of transparency of open government. And so I mean, that's many of the reasons why this language to me feels like it felt like the right way forward. We've heard from others that they don't believe that, and I'm really looking forward to the conversations we're going to have, that I already have had over email and phone with folks, I think there's a way forward that both addresses these abusive requests, and makes people comfortable with the fact that we are indeed adding another exemption for a public body.


So obviously, you know, there was some reaction to this bill, when you introduced it when it was put on the floor. Why don't you describe what kind of reaction you're getting from, you know, the public and open government advocates and such?


Well, I mean, I would I would be lying if I said, I wasn't disappointed in the reaction, because like I said, I did work very hard and worked with stakeholders, engaged stakeholders, in order to craft a bill that I thought struck the right balance, especially with the amendment, I thought the amendment really added something to the bill that we haven't had before in our foil law. 

You know, that said, I think that there was a lot of focus on two lines of this bill. And, unfortunately, because we're not able to move forward, and I don't feel comfortable moving forward, I should say, with misperceptions being out there about the bill. There's also some great stuff in this bill that would help requesters that also won't move forward. 

And so what I'm really hopeful is that we have those productive conversations in the offseason, that we have them quickly. So that we're ready in January to come back with a bill that reflects the interests and the sign off and the cooperation of stakeholders. 

I felt that there was a good faith effort in in including stakeholders in these conversations. They clearly disagreed. But, you know, unfortunately, the way that it was that this bill has been characterized, I think, unfortunately, is preventing progress in areas that those stakeholders would want there to be.


It was interesting that you mentioned that you worked with the Delaware Coalition for open government on this bill because I didn't know that. And they are the ones who kind of spoke out against it right now. So I'm just wondering, you'd mentioned some of the pieces that they had recommended got into the bill. Were there. What were those pieces? And then were there pieces that they wanted that, you know, ended up not getting into the bill?


Yeah, so if I can get technical into it. So there was what I thought was a great suggestion from Dell cog was to require electronic posting for Open Meeting. So as the law stands today, a public body can go to town hall, and you know, post up and meet their four year requirement by putting something on the front door of town hall. That's not the world We've been living in during COVID. 

And so what this bill, what one part of this bill is, is it would require a public body to have the same deadlines for proper electronic posting, so that anyone has access to that public notice. So I thought that was an amazing suggestion. And we included it in the bill. Another piece of it and I have to go through but they're extending the deadline for an appeal. Like we extended one deadline and we brought another deadline back. DelCOG was appreciative of the extended deadline. They opposed bringing another deadline back. 

At the end of the day, what we did was bring the deadlines in concert with each other, with the goal being that any Delaware and reading through FOIA, which is a long statute as is, wouldn't be trying to figure out all the separate deadlines for different pieces of this process, trying to streamline the process, so that any Delaware and can kind of pick up for you and say, This is how I need to comply. And these are my deadlines so that I can make sure and petition this if need be.


And so, you know, you'd mentioned that this bill is on pause. What does that mean, you know, on pause can mean a lot of different things. are we planning to bring it back this session? Or is this like a next year work on it the rest of the year sort of thing?


This is a bill that there is no need to rush because we need to get it right. And I did see a headline that said it was dropped. It was not dropped. I don't believe that's even what the article said. 

This bill will move forward. We are in the middle of our session, right? We're in the middle of 151st. So my goal is to have several forums in the offseason, I'd like to engage journalists, because I've heard, as we've discussed this, I've heard from journalists that there are the horror stories and things that they would want to change. 

The point of this bill is not to tamper down transparency, it's not to close the doors of government. The point of this bill is to make FOIA better. And so I want to hear from journalists, I want to hear from the public bodies. I'd like to engage the League of local governments to hear what they have to say, and to see kind of where their main struggles have been. 

I think it's going to include narrowing of some language and broadening of other language to make sure that stakeholders feel comfortable. But I don't want those great reforms that are in this bill. To go away. I think that open government folks deserve this bill. I think public bodies deserve this bill. I just think that we need to amend it based on digital input.


Okay, so the plan is to have stakeholder sessions on the off year this year, and then bring it back hopefully next year.


That's my plan. I have no intention of bringing this bill to the floor prior to June 30. We have a lot of other work to do, and I assume we're gonna be busy enough.


That's what I was wondering, because I hear on pause sometimes. And sometimes that can just be like a couple of weeks.


Yeah, I think we're running out of legislative days to engage in the type of meaningful stakeholder conversations that I believe we needed this time.


Great. Awesome. Well, thank you for taking the time to talk with me.


Yeah. Thank you. I appreciate it.

Roman Battaglia is a corps member withReport for America, a national service program that places journalists into local newsrooms.


This story has been updated to correct a spelling error

Roman Battaglia grew up in Portland, Ore, and now reports for Delaware Public Media as a Report For America corps member. He focuses on politics, elections and legislation activity at the local, county and state levels.
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