My FOIA Requests to Family Court: A Chronology and Results

It has been a hard and long struggle to get a satisfactory response from Family Court regarding my Freedom of Information (FOIA) requests. Unfortunately, the struggle continues.

When I first requested information regarding travel by three members of Family Court’s administration, Family Court turned to the Attorney General’s office for help. The Attorney General’s office came through for Family Court like a champ. In a dizzying display of statutory eisegesis, the Attorney General’s office argued that Family Court didn’t have to honor any FOIA request (theoretically, I suppose, even the most benign) because Family Court had become a constitutional court in 2005 and, as such, had not been established by the General Assembly. Of course as a matter of undeniable historical fact, Family Court had been established by the General Assembly in 1945. In the mind of some (e.g., Senator Karen Peterson), the Attorney General’s opinion left the FOIA statute and some of its previous opinions in shambles. By implication the Attorney General’s opinion unwittingly implied that any government entity explicitly established by the state constitution wasn’t subject to FOIA. The absurdity of the result was immediately evident since it meant that public schools and the State Board of Agriculture were not subject to FOIA. Interestingly, schools are public entities which Attorney General opinions have previously held are subject to FOIA. Once government entities were added that were implicitly established by the constitution, Delaware’s FOIA law became all but worthless.

While I initially believed that Family Court was bound by the Attorney General’s opinion, I later learned from Senator Karen Peterson that I was wrong. According to the Attorney General’s office, Family Court could have decided to honor my FOIA request anyhow. Apparently, Family Court wasn’t going to honor my request because they didn’t have to. So there.

Chief Justice Myron T. Steele Comes to the Rescue...sort of

Then the miracle happened. The Chief Justice of Delaware’s Supreme Court, Myron T. Steele, came to rescue. He issued a directive instructing all of Delaware’s courts to develop FOIA policies that made administrative records subject to FOIA with a few exceptions.

I was ecstatic, so much so that I ignored the cautionary assessments I received about Chief Justice Steele like from the person who has worked with him professionally before. He informed me confidentially in February that the Chief Justice is “a backroom politician with charm,” that “his rhetoric about open courts does not reflect how he does business.” He described the Chief Justice as someone who “might tell a chief judge to make records public but also tutor the same person into how to keep something out of that public record.” But others gave me different accounts like one individual who claimed that the Chief Justice Steele’s directive was commensurate with his “good government” and “libertarian orientation.” I opted to believe the latter.

Soon Family Court Administrator Guy Sapp appeared in my office telling me that Family Court would draft a FOIA policy and determine if it would honor my FOIA requests. He asked that I be patient. I also made another FOIA request of Family Court regarding hiring, termination, promotion and demotion practices in Family Court, one which compared current Chief Judge Chandlee Kuhn’s administration’s practices to former Chief Judge Vincent Poppiti’s. During this period, I maintained some level of optimism even though I recieved a second hint that one or both of my FOIA requests would be denied.

Then I learned again that miracles are rarely what they are cracked up to be. The word came that Family Court would wait until July 1, 2007 to issue their FOIA policy and that date, I was told, was okay with Chief Justice Steele. Yet all of Delaware’s other court systems had provided Chief Justice Steele with their FOIA policy. It seemed clear to me that the July 1, 2007 date was intended to keep the Delaware Legislature from fixing the statutory problem that putatively exempted Delaware’s Courts to FOIA.

But thanks once more to the intervention of Senator Karen Peterson, Family Court relented and promised to provide their FOIA policy well before the July 1st date.

The Results

On April 16, 2007, Family Court issued its Public [FOIA] Access Policy. I began to read the policy as soon as it appeared on my work e-mail. In a move that had all the quaint charm and dramatic timing of synchronized swimming, I hadn’t finished reading the policy when Guy Sapp appeared at my door and gave me a package which included the FOIA policy, a chart providing the information I requested regarding Family Court administrative travel, and a memo explaining, among other things, why Family Court would not honor my second FOIA request regarding the hiring, termination, promotion and demotion practices in Family Court.

In my view, Family Court’s “justification” to refuse honoring my second FOIA request is contrived, would arguably and absurdly prohibit it from complying with federal EEOC reporting requirements, and arguably is an attempt to conceal an embarrassingly high rate of employee terminations. I believe the second FOIA request would have spelled out in transparent terms why Family Court employees decided overwhelmingly to unionize.

Is Family Court’s Refusal of My 2nd FOIA Request Justified?

Family Court refused my FOIA request based on this criterion in its new FOIA policy:

Personnel records, applications for employment and records of employment investigations and hearings.

Information contained within personnel records, applications for employment and records of employment investigations and hearings shall not be disclosed, except for (1) name of individual, (2) dates of' employment, (3) name, location and phone number of court and/or office to which the individual has been appointed, and (4) position classification, pay grade, pay range, and gross salary. (policy, section II-A, p. 3)

This means that if you want information about hiring and termination practices at Family Court, regardless of your bone fide public policy interest in the results, Family Court will not give you the information. They will only give you employee names, dates of employment, location and phone number, job classification, pay, etc. If the Urban League, NARP or the NAACP want Family Court information regarding its hiring and firing practices based on demographics like race, age and sex, forget it. They won’t get it.

Notice also a FOIA request that merely asks for the numbers of Family Court employees hired and fired, etc., and doesn’t ask for employee identifying information that would compromise their privacy—a FOIA request precisely like mine—would not be honored. In short, Family Court’s FOIA policy prohibits it from releasing aggregate data stripped of all identifying information. That is precisely the kind of request I made. In fact, I specifically wrote in my request:

Please note I am not asking for names or any other identifying information. Only statewide numbers. (link)

The narrow amount of information Family Court will provide is worthless in determining its personnel practices and its compliance with state and federal law regarding public employment and with its own personnel policies—all matters of important public interest. If not by design, then certainly by consequence, Family Court’s FOIA policy functions to cover up its personnel practices. That is very disturbing from an institution funded by tax dollars.

What Needs to be Done

Clearly, the Delaware Legislature should not depend on the Delaware Court system to set its FOIA policies by directive. Directives can be changed suddenly. But even if they don’t, the unelected Delaware Supreme Court Justices who set the policies also task themselves with enforcing them. One needs no further evidence of the foolhardiness of that prospect than Delaware Supreme Court’s apparent contentment in allowing Family Court to release its FOIA policy exactly one day after the current session of the General Assembly ended. I cannot help but suspect that Family Court chose the July 1^st date to transparently and cynically thumb its nose at the public and members of the General Assembly who might have wanted to see FOIA legislation pass this year, legislation that would have resulted in fair and public-minded (as opposed to institutional self-serving) FOIA policies from Delaware’s Court system.

Good public policy almost never results from the interests of appointed autocrats, however noble their intentions. Rather, it results from public institutions directly subject to public scrutiny and accountability like democratically elected state legislatures.

The Delaware General Assembly needs to fix the FOIA problem for Delaware’s Court system and they should do it this session. The people of Delaware do not deserve yet another branch of government lawfully closed off to public scrutiny (if the Attorney General’s office is correct) and they also don’t need public institutions arguably fashioning policies to conceal their abuses.
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UPDATE:

I sent an e-mail to various Delaware state legislators asking them to correct Delaware's FOIA law. You can see the text of the e-mail here.