Newark council members cry foul over FOIA access to emails

A proposed policy aimed at ensuring government transparency and standardizing the process of releasing council members emails under the Freedom of Information Act met with fierce resistance from several council members Monday.

“I have so much to say about this,” Councilman Stu Markham said, adding he has several concerns, including privacy issues for constituents who email him. “I could probably talk for an hour about issues I have with how this was presented."

Under the policy, proposed by City Secretary and FOIA coordinator Renee Bensley, each council member and the mayor would be provided with a city-maintained email address – – to use for all city business. Currently, council members use private email providers such as Gmail or AOL.

If a city business-related email is received on a private account, the council member would be required to forward it to his or her government account. All emails would be retained based on state record retention guidelines.

Bensley said the proposal would simply standardize the retention of emails and make it easier to facilitate FOIA requests. She noted that most council member emails are already considered public records.

“The definition of a public record is not going to change based on whether the email goes to a personal account or a city account,” she said. “If it’s a public record, it’s a public record. The purpose behind this proposal was to help separate the public records from the personal records.”

AG recently ruled that council emails are public records

Bensley’s proposal comes amid changing guidance from the state attorney general’s office over whether council members’ emails are considered public records.

In 2010, the city denied resident Amy Roe’s request for then-mayor Vance A. Funk III’s private account emails regarding an appointment to the Newark Housing Authority. Roe appealed the decision to the attorney general’s office, which ruled the city has no right or recourse to compel elected officials to produce emails from their private computers.

However, in response to an unrelated appeal by the radio station WDEL last fall, the attorney general’s office changed its thinking, citing recent guidance from a federal appeals court. The office ruled that New Castle County Council President Karen Hartley-Nagle had to turn over emails from a private account to WDEL.

Bensley said that even prior to the 2017 ruling, she forwarded FOIA requests to council members and asked them to comply, but she could not force them to.

Though the emails are now considered public records, having emails in a private account means the public is relying on the council member to comply with FOIA without any means of guaranteeing he or she is not withholding emails.

"I’ve had residents say to me, ‘How can you tell me this is everything? Can you guarantee me there isn’t anything else out there?’ And I can’t because I don’t have access to council member emails,” Bensley told council members Monday. “I trust that you all would give me the emails that are requested, but if I’m asked to swear to it, I can’t."

Bensley noted that state law exempts from FOIA certain types of documents, such as those relating to police investigations and personnel matters. Any council emails that fall under an exemption would be redacted or withheld.

Council members voice privacy concerns


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