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Lawmakers eye more exemptions to target “abuse’” of FOIA

June 9, 2021 GMT

DOVER, Del. (AP) — Democratic lawmakers are proposing to give public officials in Delaware more reasons to deny requests for public records under the state’s Freedom of Information Act and require people seeking public records to pay new fees.

The measure cleared a Democrat-led Senate committee Wednesday after a public hearing in which representatives of open-government groups spoke against it and warned that it could lead to more government secrecy.

The legislation allows government workers to deny FOIA requests that they consider to be “unreasonably broad, unduly burdensome, intended to disrupt the essential functions of the public body,” or “abusive.”

The bill was filed on behalf of Democratic Attorney General Kathleen Jenning’s office, which is charged with reviewing petitions from people whose requests for public records have been denied.

“The number of FOIA petitions we have received has grown tremendously over the past decade,” said state solicitor Aaron Goldstein, adding that the Department of Justice has received an average of about 55 FOIA petitions annually in recent years.

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“That represents basically a tripling of the volume of work when measured against prior years,” he said.

While the growing number of petitions suggests that more FOIA requests are being denied, Goldstein told committee members that there are “a small amount of abusive filers” whose record requests undermine the intent of the FOIA.

Goldstein told lawmakers that the attorney general’s office conducted a 50-state review of FOIA laws to propose language addressing “real scenarios of abuse towards public employees or in situations where the good intentions of FOIA are intentionally turned into a weapon to unduly waste government resources.”

Examples of such abuse include a person filing requests for identical records on a weekly basis for several months, or records requesters focusing on specific state employees and using FOIA information “in an effort to harass or stalk” a public employee.

Committee chair and chief bill sponsor Sen. Kyle Evans Gay said the abusive practices “represent a very, very small number” of records requesters, but that it was important to address the issue to increase the integrity of the FOIA process.

“I know that folks are concerned about certain language and what those definitions might mean,” said Gay, who noted that there had been “robust discussions” about the “unduly burdensome” language.

In response to those concerns, Gay introduced an amendment to her bill that requires a public body to provide a “summary of the facts” for denying a FOIA request because it is considered unreasonable or abusive.

Representatives of the Delaware Coalition for Open Government (DelCOG), Common Cause and the American Civil Liberties Union nevertheless remain opposed to the measure and spoke against it at Wednesday’s hearing. No member of the public spoke in favor of it.

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Javonne Rich, policy and advocacy director for the ACLU of Delaware, said the bill “would allow public bodies to hide behind vague language and deny FOIA requests.”

Rich also suggested that the bill is redundant because the law already requires that a FOIA request adequately describe the records being sought in sufficient detail to enable a public body to locate the records with “reasonable effort.”

“This kind of opens up more reasons for public bodies to decline FOIA requests,” she said.

Claire Snyder-Hall, program director for Common Cause Delaware, a good-government group, said the bill would allow public bodies to deny FOIA requests that they consider “inconvenient or embarrassing.”

“How will ambiguous and expansive words like “unduly burdensome,” “intended to disrupt” and “abusive” be interpreted in practice?” she asked.

“The problem is that the language in the bill is so broad that it could easily be used by corrupt officials to hide information they do not want public to know about,” Synder-Hall added. ”.... It is a basic premise of our system of government that we cannot rely on the goodwill of people in power.”