When manure began piling up in fields near her Millsboro neighborhood, Irma L. Molloy wondered if she should be concerned about the coffee-colored mounds.
What potential health hazards were hidden inside the heaps of dung that disappeared when Sussex County farmers worked them into the soil or carted them off to a Laurel processing plant?
She couldn't find out.
Delaware farmers aren't required to publicly share the details of what may be the state's biggest source of agricultural pollution: animal waste.
A Freedom of Information Act exemption, written into law that regulates farm waste, prohibits Molloy, her neighbors -- or any citizen -- from viewing farm soil- and manure-testing records kept for each poultry farm in the state.
The records are kept to make certain that the hundreds of thousands of tons of animal waste generated each year by the more than 240 million broiler chickens, millions of turkeys and other farm animals raised here isn't contaminating the soil or water.
Another worry is that antibiotics given the animals pass through them and build up in the soil, potentially creating antibiotic-resistant strains of bacteria harmful to humans.
And farmers aren't the only ones exempt from public scrutiny. Delaware state lawmakers have shielded themselves from complying with the state Freedom of Information Act, enacted in 1977.
Designed to ensure public access to meetings and records, Delaware's Sunshine Law often leaves citizens frustrated.
Catherine Calloway wanted to see a copy of the contract for the Laurel town manager to find out how much money her community was paying for his salary and benefits. When she requested the document under FOIA, a town police officer hand-delivered a letter denying her that access, which stung all the more because it was written by the manager himself.
Calloway requested help in March from the Attorney General's Office.
"I wasn't going to let them intimidate me, so we contacted the attorney general and they made it very clear that under FOIA the town should provide that document to anyone who asks," Calloway said.
In Wilmington, FOIA loopholes threaten to bar citizens from learning more about government responses to foul odors plaguing their neighborhoods.
The Delaware Solid Waste Authority contends that a lawsuit between it and the contractor that operates the Cherry Island landfill-gas collection system appears to be reason enough to withhold from The News Journal and from citizens records of public complaints about odors emanating from the landfill.
Residents who live near the east Wilmington landfill feel trapped in their homes, and worry that the smelly gas could be harmful to their health. The citizens say the legal fight about the day-to-day operations at the landfill has nothing to do with their right to learn more about methane and other gases escaping near their homes.
Such are the pitfalls of FOIA in Delaware. Loopholes in the public-records law limit what citizens can find out -- or totally deny access to the inner workings of government.
"What's the point of passing a law if it's not any help to us, if as citizens we can't find out what's being put into our water supply?" asks Molloy, 61. "My husband and I talk about this all the time. We're trying to keep ahead of our risks, but we don't have enough information. "We're on a well, and we're trying to figure out if we need to filter our water."
South of the Chesapeake & Delaware Canal, all residents get their drinking water from the ground, and scientists have long been concerned that excess fertilizers, pesticides and animal wastes end up in underground water supplies.
But Delaware's FOI law cripples the public debate. Joe Tennant of Dagsboro, in Sussex County, hit that wall when trying to learn whether mounds of chicken manure were a public health threat for his community.
"What is the impact?" Tennant asked.
In 2000, state lawmakers declared farm manure and fertilizer management records off-limits to the public in a compromise pollution control law that created the state's Nutrient Management Commission. The commission requires farmers to update their nutrient management plans once every three years, but those records stay on the farm, out of public reach.
The commission makes only scattered annual audits of the plans, which outline how an individual farm handles disposing of animal waste -- generally by spreading it over farm fields.
By contrast, power plants and other industries have to keep records on pollution releases, and state regulators must make those records available to the public.
Delawareans such as Tennant and Molloy may have cause for concern.
A recent report by Environmental Defense, a nonprofit group based in New York, found that Delaware and Sussex County lead the nation in per-acre use of antibiotic and growth-promoting feed additives. The group labeled the practice a public health threat because of bacteria and water contamination concerns.
Industry groups said the methods used by Environmental Defense were misleading because they're based on averages, not on practices by individual farms. But an independent review is impossible, because farmers and poultry companies are not required to report that information.
A 'mostly cloudy' law
Reporting exemptions don't apply only to farming.
When Delaware's Freedom of Information Act was adopted, one headline described the measure as a "mostly cloudy" Sunshine Law, citing exemptions that extend even to the state's largest lawmaking body.
Still, many thought it would improve public access to meetings and records.
Increasingly, citizens are complaining. Requests for rulings on FOIA disputes have jumped from eight to 10 a year in the late 1990s to 20 to
25 a year now, according to W. Michael Tupman, a deputy attorney general who handles many of the state's FOIA investigations. About 75 percent involve public meetings and meeting notices.
"It's a very, very high priority," Tupman said.
The law "is written with very broad stokes," Tupman said, leaving uncertainties that continue to lead state, county, municipal and school officials into trouble.
"It is not a process that is particularly easy for people to deal with,"
said Leeann Ferguson, a southern New Castle County resident who has used FOIA rules to keep track of land-use issues. "The ability to obtain information requires patience and persistence."
Government records can reveal everything from the quality of schools to the locations of flood zones and the driving records of school-bus drivers. But as a test of the FOIA's reach, The News Journal filed four FOIA requests in April to three state agencies that handle environmental regulation. Items sought included:
*Air files and emission-testing results from power plants in Sussex, Kent and New Castle counties and details on Department of Natural Resources and Environmental Control risk-reduction programs at the Premcor Delaware City Refinery.
*Odor-complaint records and monitoring reports from the Delaware Solid Waste Authority's landfills in the three counties; and other information to assess the environmental integrity of the state's landfills.
*Waste-management plans from farmers, manure transportation records and complaints made to the Department of Agriculture's Nutrient Management Commission.
A whole lot of nothing
The requests yielded thousands of pages of documents and dozens of computer files, most of which contained little more than standard bureaucratic forms, shedding little light on the businesses in question.
Other files held previously undisclosed information about environmental problems. Among the highlights:
*Dead cows were found rotting in pits and half-decayed chicken carcasses had been dumped across a field for use as fertilizer. The dead animals could pollute the groundwater.
*After a series of leaks and fires, state environmental regulators quietly told officials at Premcor's Delaware City refinery that they were worried that risks of a catastrophic accident were increasing.
*Gas monitors at Cherry Island Landfill in east Wilmington have shown periodic surges in leaks of methane and other pollutants, at a time of rising complaints about odors from surrounding neighborhoods.
List of exceptions grows
At state agencies such as the Department of Natural Resources and Environmental Control, regulated industry itself is often the largest user of FOIA. Consultants wanting to drum up new business seek the names of farms regulated by the state Nutrient Management Commission.
At every level of government, however, exceptions are being carved out of the state's Sunshine Law and open-meetings rules, holding documents off-limits and closing doors. Among the more commonly withheld items are records that would disclose the names of people licensed to carry concealed deadly weapons; criminal files that might be considered an invasion of privacy; and driver's license records.
In a few situations, officials can bar or remove the public from meetings to allow talks on pending lawsuits, contracts and personnel matters.
Few state residents have spent more time working to open closed-door meetings and challenge improperly publicized events than Dan Kramer, the Greenwood-area farmer who questioned the Environmental Appeals Board's closed-door deliberations.
Kramer has taken on The Woodbridge School Board, Milton Town Council and Sussex County Council.
The proverbial squeaky wheel
Being an open-meeting activist isn't easy, he said. Not only does he take on his own battles, other Delawareans come to him as well. They are afraid of challenging government, he said.
He knows the reaction to the squeaky wheel can sometimes be painful.
Once, when he questioned the way the county was posting meeting notices, he found doors that had once been open were shut.
"It put 'em into a tither," he said, of his complaint about meeting notices. "Talk about stirring the kettle. The following Tuesday, I was told basically, you're a no-good sucking dog. ... That's how I learned to write" FOIA requests.
Retiree and grandmother Mable Granke turned to FOIA when she felt shut out of a land-use debate before the Rehoboth Beach Board of Adjustment.
Officials heard from lawyers, but not the public.
"That night, I just felt like they were saying to me: 'Go away. You don't matter.' "
Within a day or so, Granke filed a complaint with the state Attorney General's Office.
Months later, Granke learned the board was wrong.
She won, but by the time the ruling was made, an appeal on a building permit was moot.
In Laurel, Calloway was pleased and disappointed after her first use of the FOIA law, which set a precedent for rulings on public-records access.
"The attorney general made it very clear that once the council voted, it became public and at that point when it was requested under FOIA, they should have provided that document to anyone who asked," Calloway said.
"They made it very clear to the town that there should be no misunderstanding in the future as to how documents should be handled,"
Calloway said, "but they should have known in the first place. I shouldn't have had to fight."
Contact Jeff Montgomery at 678-4277 or [email protected].
Contact Molly Murray at 856-7372 or [email protected].The News Journal, DE
