Delaware State News: Open government bill decades in the making

Allowing public access to General Assembly records spurred by technology

Delaware State News
Sunday, July 5, 2009

DOVER - As the arduous 2009 legislative session came to a close on Tuesday night, or Wednesday morning, relief and exhaustion were palpable alongside notions of accomplishment and completion. With the tax bills out of the way and the budget finished, legislators had time to exhale and relish in their victories.

One of the most eminent pieces of legislation this session was House Bill 1 - the open government act that was approved after decades of history.

"This was a big victory," John Flaherty, open government lobbyist for the past 12 years, said.

HB 1 allows the public access to Delaware General Assembly meetings, records and committees, including Joint Finance, Bond Bill, Sunset committees and those created by legislative resolution. Party caucuses and e-mails written by or to legislators and legislative staff are still exempt.

"What the bill said was that there were exceptions and amendments but essentially the General Assembly is a public body," Mr. Flaherty said. "It's still going to be awhile before everything gets fleshed out but essentially you're seeing much more openness."

The dawn of the open government movement began in the 1960s during the Vietnam War. With new added pressure, many states began to pass laws allowing greater access to governmental proceedings. Consequently, the Freedom of Information Act was born in 1966, allowing the public access to federal records by written request.

The Delaware General Assembly passed FOIA in 1977, just a year after the conflict in Vietnam had ended. But despite initial progress, by the early 1980s the General Assembly made moves towards amendment, passing a law excluding themselves from the provisions of FOIA.

"Essentially now you had a two-tiered application of the law," Mr. Flaherty said. "You had the cities and counties covered but the state government was not."

Between the 1980s and early 2000s, many exceptions were carved into the act.

"A lot of agencies lobbied and said they didn't want to be under this law," Mr. Flaherty said. "So the law got weaker and weaker."

However, a critical junction occurred in 2002 with the election of Sen. Karen Peterson, D-Stanton.

"She made open government a hallmark of her career," Mr. Flaherty said. "Things started to move in the direction of more openness, particularly eliminating the two tiered difference between cities and counties and Legislature."

In 2008, three new Democratic senators were added to the floor - Brian J. Bush weller, D-Dover, Michael S. Katz, D-Centerville, and Bethany A. Hall-Long, D-Glasgow - and the balance started to shift once again towards more open government.

"Last year, the Democrats took control of the House, and the speaker of the House, Bob Gilligan, worked well with Sen. Peterson," Mr. Flaherty said. "He figured if he could get this bill passed in the House, they could use it as a springboard for the Senate."

After the bill's introduction in March, it passed unanimously in the House. It came out of committee in May and on June 2, it also passed unanimously in the Senate.

"With the speaker of the House adding his power and prestige to the effort, it helped quite a bit when it got over to the Senate," Mr. Flaherty said. "Amendments were added in the House so that by the time it got to the Senate, I think people had pretty much resigned to the bill's passing."

By June 12, Gov. Jack A. Markell had signed HB 1 and it was enacted into law.

"It's a huge step having the GA considered a public body because I used to hear complaints from counties and cities about how unfair it is and how they felt they were held to a higher standard," Mr. Flaherty said. "The GA would pass laws impacting these people but they wouldn't pass laws impacting themselves - so I think this is really going to help make everything equal."

Controversy did ensue over the closed doors of e-mail records and party caucuses.

"The caucuses are political creations," Mr. Flaherty said. "They like to wheel and deal in private, in secret, and I think they should wheel and deal in public - what's the harm?"

"There's really no reason to close government down like that other than for political purposes, not policy considerations," he said. "The people have a right to know."

The new level of openness has technology to thank for its admission as well. Full-text bills, public meeting calendars, press releases and executive orders are now all available on the Internet.

"Technology is sort of surpassing the law and any opposition to open government; we're seeing a ton of stuff being put on the Internet," Mr. Flaherty said. "That's not really part of the law but people are accepting it and going beyond the law to put it out there."

"Just look at the Iranian election - try as they may, they can't close the flow of information down," he said. "Technology surpasses their ability to control it and look, government and society are opening up."