Legislator: Markell stifling transparency in state government

DOVER — Gov. Jack Markell’s team recently denied a Freedom of Information Act request to reveal a private email address used by the governor.

Now the legislator behind the filing is accusing the governor of gaming the system.

Rep. John Kowalko, D-Newark, submitted a FoIA request to the governor’s office last month asking for the address, which contains a pseudonym.

The governor, a fellow Democrat, uses Governor.Markell@state.de.us, Jack.Markell@state.de.us and the other email.

Freedom of Information Act laws allow citizens to make formal requests for government records and communications. Delaware’s laws allow for rejection of requests asking for, among other things, trade secrets, executive sessions and criminal records.

Inquiries also have been denied in the past for being overly broad.

Co-signing the letter to the governor was John Flaherty, president of the Delaware Coalition for Open Government.

The request reads as follows:

“The preamble to Delaware’s Open Government Law states, in part, that ‘It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy.’

“Secret email accounts used by public officials violate the spirit of Delaware’s Open Government Law and prevent the public from exercising that opportunity to observe and monitor these same public officials.

“Therefore we are formally requesting a list of all email addresses and pseudonyms, to be provided in full, for Gov. Jack Markell during his period as governor that have been used at any time during that period for any communication, including sending, receiving or storing emails that concern government business or any other communication regarding official business.”

Andrew Lippstone, the governor’s chief legal counsel, responded last week, denying the inquiry.

In his letter, Mr. Lippstone characterized the governor as an advocate for open government and said he “strongly disagrees with the implication that there is anything secretive or untoward about his use of email.”

He called the third address “among the worst-kept secrets in state government,” noting members of the media have mentioned it by name in previous stories and FoIA requests.

As detailed by Mr. Lippstone, mail sent to Jack.Markell@state.de.us typically is viewed by the governor, and he may respond directly to it. Governor.Markell@state.de.us is overseen by Gov. Markell’s chief of constituent relations, and the third email is a “direct dial” used for particularly pressing or high-up matters.

“Through a confidential listserv maintained by the National Governors Association, I asked my fellow governors’ legal counsels several weeks ago whether any of their governors do not maintain a non-public email address on their state’s email system,” a footnote in the letter reads.

“Although this was admittedly non-scientific, with the exception of one governor who does not use email, no one responded that their governor does not maintain such an account.”

Listserv is email list server.

Mr. Lippstone did not specifically cite an aspect of Delaware’s FoIA law that allows him to reject the filing.

“This is not about secrecy, but about the most effective and efficient way to manage a heavy volume of electronic communications,” he said.

Rep. Kowalko, who has clashed with the Democratic leadership in the past, took issue with the rejection.

“At best, the governor’s response to my legitimate request for information is disappointing; and, at worst, it displays an arrogance and willingness to deliberately stifle transparency in our government,” he said in a letter submitted Monday.

Rep. Kowalko said Tuesday he plans to pursue two more FoIA requests, including one on the private listserv. Should that fail, he could appeal to the Attorney General’s Office.

Emails sent by members of the General Assembly and their aides are immune from FoIA laws, something noted by Mr. Lippstone. In his response, Rep. Kowalko called that claim a “feeble attempt to distract from the issue,” noting he did not support that exemption.

“Despite the words of the governor’s lawyer that ‘Gov. Markell strongly disagrees with the implication that there is anything secretive or untoward about his use of email,’ the governor refuses to release his email account,” Rep. Kowalko said in the rebuttal letter.

“This is no longer an ‘implication.’ It is a statement of fact. The governor has no ground to stand on if he is nonsensically claiming that keeping an email secret is not ‘secretive.’ ”

This is not the first time Rep. Kowalko has broken ranks. The Newark Democrat has been vocal about his disdain for the governor’s priority schools plan. He’s also had public disagreements with Speaker of the House Peter Schwartzkopf, D-Rehoboth Beach.

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