Delaware governor enacts amendment to revise state’s public records exemptions

DELAWARE — A bill signed into law by Gov. Jack Markell on Tuesday largely preserved public records and open meetings exemptions for the University of Delaware and Delaware State University, but will require the universities to produce records related to proposals or contracts that spend public funds. The law will go into effect immediately.

Signing the legislation demonstrates the Democratic governor’s support for transparency in Delaware, his spokeswoman Kelly Bachman said.

The bill “strengthens those efforts by requiring the University of Delaware and Delaware State University to provide clear disclosure of projects that disburse public funds,” Bachman said in a statement. “He was happy to sign it into law.”

The two universities are “state-related,” meaning they only receive a percentage of funding from taxpayer dollars. The rest of the money comes from private funds. Only one other state — Pennsylvania — has a similar records exemption for universities.

Delaware’s new law says that the two universities must “indicate on the request for proposal” or other “competitive bids” when the money “relates to the expenditure of public funds.”

Under the legislation, the full Board of Trustees at UD and Delaware State still serve as the institutions’ only public bodies. Meetings are required to be open to the public only when the full boards gather.

Representatives from UD did not return phone calls and emails requesting comment. Carlos Holmes, a Delaware State spokesman, declined to comment.

The original bill, sponsored by Rep. John Kowalko, a Democrat, was debated and passed in an administrative committee hearing June 12 and was much broader. Kowalko sought to end the exemptions entirely.

Kowalko’s bill was amended twice and watered down. He said he still thinks the legislation is an improvement.

“I decided to look for a doorway where I can turn the knob and maybe pick the lock next year,” Kowalko said.

John Flaherty, president of the Delaware Coalition for Open Government, said at the House administrative committee hearing he supported the bill in its original form, adding that “the problem that we faced was that the bill was going to be killed in committee, unless amended.” He said he was grateful because this was the first time that this particular issue moved to the floor of the House.

“Fifty percent of something is better than 100 percent of nothing,” he said.

Legislative efforts in to end the exemption in Delaware have failed twice before. One of the bills, introduced in 1997, didn’t specifically name either university but would have applied the records law to institutions receiving at least $75 million in public money. At the time, UD was the only institution that would have been affected. More recently, in 2011, the House considered legislation that specifically targeted UD and Delaware State, but the committee tabled the bill.

“If you don’t start moving forward, you’re never going to make progress,” Kowalko said.

One of the sparks that led Kowalko to write the bill came from UD’s secret agreement with a private company to build a power plant on one of the university’s campuses. Kowalko said UD rejected his and others’ records request regarding the negotiations and payments that went into the plant. The construction of this data center angered residents.

UD announced June 10 that they plan to terminate this project because they determined the plans were “not a good fit for” the campus, according to a University statement.

Flaherty said that there is a larger issue that must be addressed to the universities.

“I hope this will have a bigger discussion and find out why the University of Delaware feels that it’s going to be negatively impacted by this,” Flaherty said.

Contact Spoont by email or at (703) 807-1904 ext. 127.

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