Update: After this story was published, Governor John Carney issued an update to his executive order that resumed all FOIA requests

Six months into Governor John Carney’s State of Emergency declaration, which limited some government activities because of the coronavirus pandemic, citizens and journalists alike are sounding the alarm over the administration’s handling of Freedom of Information Act requests, which many state agencies are no longer fulfilling on a timely basis, if at all. 

The Delaware Freedom of Information Act provides agencies 15 business days to respond to FOIA requests, “either by providing access to the requested records, denying access to the records or parts of them, or by advising that additional time is needed because the request is for voluminous records, requires legal advice, or a record is in storage or archived.” 

However, Carney’s emergency declaration has effectively suspended FOIA compliance. It extended the timeframe to answer requests until 15 days after the end of the State of Emergency, for which there is no end in sight. While some agencies have continued to fulfill FOIA requests, others appear to have either suspended or severely limited compliance with the state’s open records laws, which are designed to guarantee that the public has access to the public records of governmental bodies.

News Journal/Delaware Online journalist Jeanne Kuang called the FOIA exemptions “completely wrong,” adding that “under DE’s emergency order public bodies not only basically never have to respond to FOIAs, they also basically never have to respond to FOIA denial appeals so public info is just being given out when officials feel like it.”

In a retweet of Kuang’s original post, WDEL journalist Amy Cherry called on the administration to reconsider: “Gov. @JohnCarneyDE should amend his State of Emergency, as he’s done several times during the #COVID19 pandemic.”

So which state agencies are still answering FOIA requests? Which agencies are dragging their feet? And which ones appear to have stopped altogether?

Delaware Call recently conducted a survey to assess FOIA response times for the 38 state agencies that are subject to open records requests, according to the state of Delaware website. In the interest of fairness, we asked each agency to produce the same internal document: a list of all FOIA requests since 2019, or FOIA logs.

Of all documents obtained through a Freedom of Information Act request, perhaps the least controversial of all are an agency’s FOIA logs. The logs are tracking documents, usually spreadsheets, that monitor the status of each request. They include relevant information about each request—such as a written summary of the request, submission date, and requester contact information. Additionally, they may contain internal directions for the agency, such as the response date for the request, relevant divisions or departments, and employees supervising the process. FOIA logs are updated regularly and are readily available to agency employees.

The Delaware Call submitted requests for FOIA logs to 38 state agencies on August 24, 2020. The results, as of September 16:

• 18 agencies responded within 15 business days and provided the FOIA logs without cost;
• 1 agency responded within 15 business days and charged a $25 fee for access to the FOIA logs;
• 12 agencies responded within 15 business days but did not provide FOIA logs, citing instead the Governor’s emergency declaration suspending FOIA;
• 7 agencies failed to respond.

In other words, fewer than half of state agencies are abiding by the spirit of Delaware’s Freedom of Information Act. Of the 18 agencies that responded to our FOIA requests, 13 provided the logs in the initial reply email, including the Department of Justice, which appears to handle as many FOIA requests as all other responding agencies combined.

With those FOIA logs, Delaware Call was able to ascertain each agency’s level of FOIA compliance under the state of emergency. The logs show that nearly all the responding agencies continue to acknowledge receipt of FOIA requests and provide a final response in a timely manner.

Among those agencies that acknowledged the request but did not provide FOIA logs, the most frequently cited reason was that state employees are currently working from home and therefore, “not all files are readily available to search,” which may be true for some documents but is highly unlikely to be the case regarding FOIA logs. The acknowledgement emails usually end with a statement declaring the agency “will make all reasonable efforts to respond to your FOIA request, in whole, or in part, in a timely manner, but may need all the time permitted by the Fourth Order.” 

In other words, some state agencies are suggesting that it could be 2021 before they start answering FOIA requests again. These agencies include but are not limited to, the Office of the Governor, the Secretary of State, Department of Elections, and Division of Corporations.

“We understand the concerns about FOIA – and the obligation we have, especially during a pandemic, to be transparent with Delawareans about the issues we’re facing and the work of their state government,” a spokesperson for Governor Carney’s office replied via email. “We will continue to evaluate this provision in the order and take FOIA seriously.”

Advocates for government transparency, however, are unconvinced that freedom of information requests are being treated as a priority at state agencies.

“In this day and age of electronic communication, I can’t fathom why it’s so difficult to respond to FOIA requests,” says John Flaherty, a former aide to Joe Biden and board director of the Delaware Coalition for Open Government, a nonprofit advocacy group committed to promoting and defending the right to transparency and accountability in government. Flaherty noted that citizens no longer need to send a form in the mail and that FOIA noncompliance discourages civic participation. “We should be leaning towards making it easier and quicker to respond to FOIA requests than we have done in the past. I would hope that the Attorney General would take a look at these state agencies that are not meeting their legally mandated requirement to provide public documents.”

AGENCIES THAT ANSWERED REQUESTS AND PROVIDED FOIA LOGS

• Department of Justice
• Office of the Treasurer
• Department of Transportation
• Department of Natural Resources and Environmental Control
• Office of the Insurance Commissioner
• Department of Human Resources
• Department of Technology and Information
• Department of Finance
• Department of Education
• Department of Agriculture
• Delaware State Fire School
• Delaware State Housing Authority
• Office of the Fire Marshall
• Delaware National Guard
• Public Integrity Commission
• Fire Prevention Commission
• Department of Children, Youth and Families
• Office of Defense Services

AGENCIES THAT RESPONDED BUT DID NOT PROVIDE FOIA LOGS

• Office of the Governor
• General Assembly
• Office of the Secretary of State
• Department of Elections
• Division of Corporations
• Department of Health and Social Services
• Department of Safety and Homeland Security
• Division of Small Business
• Office of Management and Budget
• Public Service Commission
• Division of Professional Regulation
• Manufactured Home Relocation Authority
• Delaware Criminal Justice Information System

AGENCIES THAT FAILED TO RESPOND

• Office of the Lieutenant Governor
• Office of the Auditor of Accounts
• Department of Corrections
• Department of Labor
• Division of the Public Advocate
• Division of Public Health
• Office of the Bank Commissioner