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March 11,  2006

 What ever happened to government of the people, by the people and for the people? Reality is that government officials at every level are doing their best to see to it that ordinary people are kept as far out of the loop as possible. Federal documents are being classified into various categories of secret at the rate of 30 a minute -- 15.6 million last year. There is a veritable bureaucratic army whose principal function is "creating and filing secrets," said David Ledford, executive editor of the News Journal.

At the state level, the Freedom of Information Act, despite its high-sounding statement of policy -- "[I]t is vital that citizens have easy access to public records in order that society remain free and democratic." -- is riddled with loopholes. Not only is the General Assembly specifically exempted from what provisions it does contain, but the attorney general's duty to represent state agencies creates a conflict of interest preventing his office from enforcing the act against any of those agencies. The only way anyone can obtain compliance beyond the local level is by the expensive course of appealing to Court of Chancery.

Although "citizens have the right to know what their government is doing," Ellen Wasfi, president of the League of Women Voters of Greater Dover, said the '9-11' terror attack has given public officials a powerful deterrent to having that right exercised. Security is "being used as an excuse for hiding information" in cases where the only real danger is there potential embarrassment, she said.

A consequence -- unintended or otherwise -- of the U.S.A. Patriot Act has been to create a "culture of secrecy," said Drewry Fennell, executive director of the American Civil Liberties Union of Delaware. "Since '9-11' we have seen a real movement across the country ... to close the door on government," she said.

Peter Weitzel, coordinator of the Coalition of Journalists for Open Government, said Delaware ranked 38th out of the 50 states in a national study of how much 'sunshine' it lets in to view governmental operations. A key failing of the state's Freedom of Information Act is that 13 of its 14 stated exemptions "give the [public] agency the ability to decide whether [something] falls within the exemption."

A prime example of how much light seeps in is the annual process of enacting an array of significant legislation with minimal scrutiny as the Assembly winds down its sessions with well-into-the-night marathons on the last day of June, said representative Robert Valihura. The most egregious abuse, he said, is time-honored practice of 'walking around' a bill among colleagues rather than following the process of having it aired before a committee in open session. "You don't get much sunshine at midnight," he quipped.

Those comments were made at a recent symposium on openness in government or lack thereof sponsored by the League of Women Voters and the News Journal. The consensus which emerged was clearly that the system is in dire need of reform. Attorney general Carl Danberg and James Vaughn, president judge of Superior Court, both said they would support changes in the state law, but were not specific about what they should be.

A good place to start would be to narrow the concept of 'personnel matters' and 'pending or potential litigation" as just causes for a public agency to shut the doors on discussion. If interpreted broadly -- as is frequently done -- almost any deliberation can be sheltered under that umbrella. The determining factor if a particular situation should be is whether it can be reasonably concluded that real and significant harm to an individual will result from open discussion.

Since no public gathering is really public unless the public knows about it, an immediate reform would be to require agencies to post notices where they can be seen in the normal course of a person's activity. The law requires only that seven-days notice be given -- unless it can be claimed that it is not possible to give seven-days notice, in which case 24-hours notice will suffice -- and that it be posted at the agency's office and the place where the meeting is to be held. Virtually every public agency nowadays has a website, so it would be logical that the 21st century equivalent to publishing a classified advertisement in a 'newspaper of general circulation' would be to post it conspicuously on the website. That would be cheaper and have the advantage of allowing necessary changes if and when appropriate. Such a requirement should include agencies' committees, taskforces and advisory panels, which are included in the requirements of the law but frequently have gatherings that go unnoticed.

The process of exercising the right to be informed also could stand some serious tweaking. Except in instances where massive amounts of information are sought, it should be made easy to inspect public documents as a matter of course. A simple walk-in request would be appropriate if the documents are of a nature that they are kept in an immediately accessible file. At most, 24 hours notice via telephone or e.mail that a request is going to be made should suffice. A simple form to be filled out and signed on the spot would provide an adequate record of the transaction. A reasonable number of copies -- say a total of a dozen pages -- should be available without charge and a nominal charge levied beyond that. After all, the requester's tax dollars pay the bill for the routine business activity of copying.

The process of adjudicating an alleged violation of the Freedom of Information Act should be streamlined. Danberg told the symposium that his office is not able to comply with a request to review a claim within the 20 working days specified in the law. It has whittled the average review time from 75 days to 45 days, but if the right to be informed is as basic as the state law said it is, paying for paralegal staff to handle the routine processing steps would seem justified.

Present procedure also provides the agency complained about the opportunity to respond in detail to the citizen's complaint. In most cases, a lawyer does the responding. The matter is then decided without the complainant having the opportunity to respond to the response. It stands to reason that, absent an open-and-shut situation, the odds are against a lawyer ruling against a professionally prepared brief in favor of an amateur's complaint.

Michael Tupman, the deputy attorney general with primary responsibility for handling freedom-of-information complaints, said he could not specify the ratio between rulings favoring the complainant and those supporting the agency. But he "guess[ed] it might be about 50-50." Since a person is not likely to pursue the matter beyond an initial rejection without reason to believe he or she has been wronged, Tupman's estimate, if accurate, is not encouraging. Again relying on the truth of the claim in the law about what is fundamentally at stake, commissioning a freedom-of-information ombudsman with no other ties to government at any level would be appropriate.

And when all is considered, a remedy beyond simply telling an agency it has sinned and advising it not to do that again would be appropriate. A few years ago, Common Cause of Delaware attempted to insert penalties for officials who violate the law. Until something like that is done, it is hard to believe that the idealistic discussion at the seminar will go much further than being only that.

 Somehow it has proved difficult to see how the package of proposed legislation being put before the Assembly qualifies as, in the words of the governor's press notice, "solving Delaware's energy challenge." Unless there is something in there that has been overlooked, it appears to be little more than throwing money -- John Q. Public's money -- at the problem.

If enacted, the laws would use a combination of tax money and surcharges to finance energy conservation and financial assistance to low-income households to pay their heating and cooling bills. State government would be authorized to seek more favorable rates from alternate electricity suppliers while Delmarva Power and Delaware Electric Cooperative customers, without comparable bargaining power, would be allowed to phase in the planned massive rate increase provided they pay the equivalent of interest on what they 'defer' past the May 1 effective date.

What's lacking is the spoonful of sugar to make the medicine go down. Conspicuous by their absence from the package are measures to re-regulate electricity rates until the competition originally envisioned actually materializes and an effective excess-profits tax to assure that the impending rates are as justified as the companies claim.

 If terrorists ever have the audacity to target Dillingham, Alaska, -- population 2,400; access not easy -- they'll find Big Brother well prepared. Thanks to a Department of Homeland Security grant, the tiny snowbound burg is covered from every angle with 360 surveillance cameras. CLICK HERE to read the Los Angeles Times article.

 In churches, mosques, ashrams, "healing rooms," prayer groups and homes nationwide, millions of Americans offer prayers daily to heal themselves, family, friends, co-workers and even people found through the Internet. Fueled by the upsurge in religious expression in the United States, prayer is the most common complement to mainstream medicine, far outpacing acupuncture, herbs, vitamins and other alternative remedies.  MORE

 When you think about it, it makes a lot of sense. Concerned about drunken drivers and other bad things people do when they have had too much, the Texas Alcoholic Beverage Commission is looking to attack the problem where it occurs -- in bars. The commission sent undercover agents into 36 bars and arrested 30 for violating the state law against being intoxicated in public.

 Public humiliation on Comedy Central's ''The Colbert Report" is becoming a rite of passage for the closely divided U.S. House of Representatives, whose members allow themselves and their districts to be ridiculed in the interests of reaching young voters ahead of elections that could decide party control of the chamber. CLICK HERE to read the Boston Globe article.

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