The Delaware Secrecy Fetish.

As a carpetbagger from outside Delaware, the one thing I have never been able to wrap my head around is the degree of secrecy and obufscation that surrounds Delaware state government -- and, to a lesser extent, county and municipal government. Records which would normally be available for easy public inspection online in many governments of similar size are virtually impossible to find; you can only receive them after submitting a FOIA request.

(And, until the Third Circuit Court of Appeals' recent ruling, only FOIA requests from Delaware residents would be honored by most agencies. Fortunately, the Court rejected the State's laughable justifications for the residency requirement, which included claiming that the restriction served the purpose of “defin[ing] the political community and strengthen[ing] the bond between citizens and their government officials" and that an out-of-state resident could just hire a Delaware resident to make the request on his or her behalf.)

"Ah," the usual State response is, "who cares about online availability? You can request them with FOIA!"

This reminds me of a passage from the novel The Hitch-Hiker's Guide to the Galaxy by Douglas Adams. The novel's protagonist, Arthur Dent, wakes up one morning to find that his house is about to be demolished to make room for a highway bypass:

"I'm afraid you're going to have to accept it," said Mr Prosser, gripping his fur hat and rolling it round the top of his head, "this bypass has got to be built and it's going to be built!"

"First I've heard of it," said Arthur, "why's it going to be built?"

Mr Prosser shook his finger at him for a bit, then stopped and put it away again.

"What do you mean, why's it got to be built?" he said. "It's a bypass. You've got to build bypasses."

Mr Prosser shifted his weight from foot to foot, but it was equally uncomfortable on each. Obviously somebody had been appallingly incompetent and he hoped to God it wasn't him.

Mr Prosser said: "You were quite entitled to make any suggestions or protests at the appropriate time you know."

"Appropriate time?" hooted Arthur. "Appropriate time? The first I knew about it was when a workman arrived at my home yesterday. I asked him if he'd come to clean the windows and he said no he'd come to demolish the house. He didn't tell me straight away of course. Oh no. First he wiped a couple of windows and charged me a fiver. Then he told me."

"But Mr Dent, the plans have been available in the local planning office for the last nine month."

"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything."

"But the plans were on display ..."

"On display? I eventually had to go down to the cellar to find them."

"That's the display department."

"With a torch."

"Ah, well the lights had probably gone."

"So had the stairs."

"But look, you found the notice, didn't you?"

"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard."

And so we learned yesterday from the News-Journal that the state Division of Public Health, the agency tasked with conducting health inspections of restaurants and food establishments, makes it about as easy to find their inspection reports as it was for Arthur Dent to find those highway plans.

Delaware doesn't even have a mechanism to post restaurant inspection information on the premises. This is just plain silly. I used to live in a city with a population greater than Delaware's, whose health department had a very simple grading system for restaurants - A through F. Each year, the restaurant got a sticker with their grade which was posted right on the front door (approximately where Delaware's silly "STOP! THINK! A JAIL, FINE, OR BOTH!" anti-underage-drinking sticker would go) of the establishment. Also, inspection summaries were published in the paper. There was no secrecy, no hidden tricks, nothing like that.

But that's not The Delaware Way, it seems. And the restaurant industry has no problem with this, according to a spokesperson for the National Restaurant Association:

"It is sufficient that consumers can request individual reports from their local health departments, as they can in Delaware," said Christine Andrews, director of health and safety regulatory affairs for the national association. The only public notice should be of a restaurant's closing, she said. "An open restaurant is a restaurant that's safe to eat in," Andrews said.

That statement is so ridiculous it's not even funny. As one who has been accosted by food poisoning from three separate restaurants, I can tell you there is no connection between a restaurant being open and its safety.

But even more ridiculous is the justification given by the various State functionaries for the lack of availability of inspection information, according to the article. Too many requests for projects, not enough time, too complicated, etc. Bullshit. Posting inspection reports online is the easiest thing in the world. Scan the report to PDF (or distill it right to PDF from your word processor), upload it to your agency's web server, update a web page.

As for the grading process, according to the article, Delaware's inspection process is so Byzantine, with appeal after appeal, that it might be difficult to easily process an inspection report into a final rating -- at least as the system stands now.

Even so, the fact that the Division of Health has found so many ways to avoid making public health information available to the public speaks volumes about its priorities.

And even if the law were changed to require the Division of Health to make that information more readily accessible, that's no guarantee the system would change. On the same day, the N-J reported that many state agencies have failed in their legal duty to publish, on a central State website, notices, agendas, and minutes of their public meetings. At least this time, the State agencies were actually contrite for violating the law, although their excuses were about as credible as "the dog ate my homework": new secretary, oversight, programmer needs to take care of it, etc.

Secrecy extends to the judiciary as well. For example, we find, from the Delaware Supreme Court's website, that the Court entered an order enjoining accountant Ralph V. Estep from the unauthorized practice of law, but only a two-page order is posted -- not the actual opinion from the Board of the Unauthorized Practice of Law. Nothing is available on the UPL Board's website about this case, nor does anything appear on the Office of Disciplinary Counsel's Digest of Lawyer Discipline. Indeed, were it not for a post on Larry Sullivan's "Delaware Law Office" blog, we might not ever know that this came about because, according to Larry, Estep was '"representing" clients in the preparation of wills and the probate of estates."

Another area where transparency is sadly lacking is Delaware's Court on the Judiciary, which is tasked with handling complaints against judges. That Court has no website; in fact, the only place where one may find a reference to it is on the ODC's website, where the Court's address is given as a place to file such complaints (presumably, so ODC doesn't get misdirected complaints). While Court on the Judiciary opinions are posted -- well, one opinion in the past six years -- the public has no way of knowing whether or when the Court has opened a proceeding into judicial misconduct.

According to the American Judicature Society, Delaware is one of three jurisdictions -- the others being the District of Columbia and Hawai'i -- where confidentiality of judicial discipline proceedings ends only upon public discipline of the judge. The vast majority of jurisdictions make information public as soon as an investigation is over and formal charges are filed.

Does this mean that no active judicial misconduct cases are pending in Delaware? Of course, since no information is available, we have no way of knowing. Certainly, the powers that be here in Delaware are fond of telling everyone who will listen that we have a judiciary second to none, that we consistenly rank #1 in the U.S. Chamber of Commerce's polls, etc. And while that's all true, and we generally do have a great judiciary, might it not also be possible that the same powers that be are not excited about judicial investigations and discipline being made public or the very same reasons that our judiciary is touted? As any Delaware lawyer who appears in the courts will tell you, Delaware judges do not always exhibit good judicial temperament and demeanor, despite all the talk about the quality of our judges.

Delaware's obsession with secrecy has assumed the status of a fetish. See sense 2 of the word from the Oxford American Dictionary: "a course of action to which one has an excessive and irrational commitment." State government thrives on secrecy. And, apparently, so does the electorate. Even in this year of voter anger and the "clean sweep" movement, the slate of Republican Senate candidates who ran on the platform that they would open up the General Assembly to FOIA got their butts kicked -- one of them, John Feroce, losing to Jim Vaughn, who was so sick that he couldn't even campaign.

I do not claim to have the answer to this state's obsession with secrecy, but I do know that it is becoming very tiresome for people like me who fund the state machinery that is based on secrecy, obfuscation, and confidentiality.