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7/14/2010
Councilman Weiner obtained documents for community to expose irregularities. "Its my duty" News Journal

Delaware government: NCCo Council must pay for records
High costs prompt county to require FOIA requests
BY CHAD LIVENGOOD • THE NEWS JOURNAL • JULY 14, 2010 
 
Councilman Bob Weiner is said to have racked up $1,200 in copying costs. 

New Castle County Executive Chris Coons' administration has tightened access to public records for County Council after one councilman racked up $1,200 in copying costs.

The administration has created a temporary policy requiring council members seeking public records to file formal Freedom of Information  Act requests and charging for "onerous" requests, County Attorney Gregg Wilson said.

The policy has upset some council members who believe the legislative branch should have unfettered access to records as a means of keeping the executive branch in check.

"If I need information to help me make a decision, I don't understand why it shouldn't just be turned over," said Councilwoman Lisa Diller, a Newark Democrat . "I really don't think council members should have to FOIA for anything."

Charging one wing of the same government for documents appears to be unprecedented in Delaware. The state Attorney General's Office has never issued an opinion about the legality of such a policy, spokesman Jason Miller said.

County officials said the policy was prompted by Councilman Bob Weiner, who obtained thousands of documents related to controversial land developments that they believe he turned over to civic group leaders critical of the county's land use process.

"I don't think it can be proven. [But] there are suspicions," Councilman George Smiley said. "Unfortunately, there's the potential to abuse the process by using your council position to obtain a large amount of documents for an outside entity."

Citizens for Responsible Growth in New Castle County, a civic group Weiner is affiliated with, is raising money for a potential lawsuit against the county over a Pennsylvania developer's controversial projects at Barley Mill Plaza and Greenville  Center.

Weiner said he obtained the documents to educate himself and his constituents on how the county's Land Use Department is handling major projects in his Brandywine Hundred district.

"If it exposes irregularities in the land use decision process, then I'm not only serving my constituents, but all citizens of New Castle County," Weiner said. "Bad land use decisions affect every citizen."

On Feb. 24, Wilson told council members that the administration would require "formal FOIA requests" and limit "free materials and staff time to reasonable requests for the public good as set forth in our rules," according to a memo obtained by The News Journal.

In May, Land Use General Manager  David Culver took the new policy a step further, informing council members they would be charged for document requests exceeding 20 pages, according to an e-mail obtained by The News Journal.

Without identifying the council member, Wilson wrote, "recently we provided to a Council member, an attorney, a paralegal and a civic leader who accompanied the Council member documents which, together with staff time, cost $1,210.88." The unnamed council member requested four copies of each document, which the Coons administration didn't calculate into the total cost, Wilson said in a memo obtained by the newspaper.

In an interview, Wilson would not identify the council member.

"It was a very unusual request that promoted this," Wilson said. "In general, this was an attempt to highlight a problem."

But Culver and Councilman William Tansey said it was Weiner who obtained documents related to the developments at the Pilot School in Talleyville and Barley Mill Plaza and Greenville Center.

"He was using information Land Use had to fight the developer," Tansey said of Weiner, a fellow Republican . "He was fighting the developer with county resources."

Culver said attorneys who intend to sue the county should obtain documents through their own FOIA request or the evidence discovery process of a lawsuit.

Weiner has criticized the Land Use Department's handling of the three developments. The Pilot School and Greenville Center are in his legislative district.

In February, Weiner attempted to block a rezoning vote concerning the Pilot School. He argued the Land Use Department was misapplying the redevelopment code, which he said was meant for improving abandoned and underutilized property, not "a perfectly functioning school."

On Feb. 16, County Council approved rezoning the 15-acre Pilot School site to allow a 149-unit age-restricted residential community to be built there.

Tansey said he was surprised by the "direct" tone of Wilson and Culver's memos to council about the issue. "It sounded to me like it was very pointed," he said.

Smiley said he supports the administration's charging council members for documents directly from their annual $3,500 office expense budgets.

"That should go against the council members' budget, unless council is requesting it as a whole," said Smiley, a New Castle Democrat. "Governments cross-charge all the time."
Councilman David Tackett concurred, calling the administration's new rules a "pretty fair policy."

"If we're going in and requesting hundreds of pages of documents, we should have to pay for them," said Tackett, a Newark Democrat. But it doesn't appear the policy has unanimous endorsement on the 13-member council. Councilman John Cartier said requiring council members to fill out a FOIA form to get routine documents is "disrespectful of council."

County Council and the Coons administration are updating each arm of government's open records and Freedom of Information Act  policies, Wilson said.

At issue is how each arm of the government treats requests for documents and what the agencies charge for copying and staff time required to process those requests from council members, developers, residents and the media, Wilson said.

"We're revising our policy, but it's not final yet," Wilson said.

Council President Paul Clark said he expects the council's executive committee to consider a revised FOIA policy at a meeting in late July or early August.

Weiner welcomes a council review of the policy, but said he was "unaware that I violated any rule."

"It's part of my duty," Weiner said.

Contact Chad Livengood at 324-2832 or clivengood@delawareonline.com.
 
Councilman John Cartier says having to fill out FOIA forms is "disrespectful of council." 

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"Bob Weiner has done a great job in developing and constantly keeping a watchful eye over the Talley Day County Park and its dog park. I live on Wilson Road directly across the street from the park. I talk to many pet owners who just love the park. Many have told me that it's very relaxing there and they love the fact that their dogs can play together in a secure environment. When Bob walks around the park with his two dogs he stops to say hi to everyone. He certainly deserves credit for a job "well done" and I thank him for that along with so many pet owners. "

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