The Honorable John A. Kowalko, Jr.

April 15, 2015

Page 1

April 16, 2015

Via Electronic Mail

The Honorable John A. Kowalko, Jr.

Legislative Hall
Dover, DE 19901
Re:

Your letter to Governor Markell dated March 26, 2015

Dear Rep. Kowalko:

I am writing to respond to your letter dated March 26, 2015, in which you requested that Governor
Markell provide a list of all email addresses and pseudonyms used by the Governor for any
communication regarding official business.
As a strong proponent of FOIA, and as the highest-ranking state official subject to its provisions,
Governor Markell strongly disagrees with the implication that there is anything secretive or untoward
about his use of email. The Governor takes seriously his obligations under the Freedom of Information
Act, and he and his staff work hard to ensure compliance with FOIA and any other laws and policies that
might apply.
Although FOIA does not require any agency to make a list or compilation of information in public
records,1 the Governor uses 3 state email accounts. They are as follows:

Jack.Markell@state.de.us: Emails in this account are delivered directly to the Governor at his
desktop and on his mobile devices. In many instances, the Governor responds directly to
emails sent to this account. Other times, an assistant will forward these emails for response by
a member of the Governors staff, a Cabinet secretary, or another state agency representative.

Governor.Markell@state.de.us: This account is maintained by the Governors Director of

Constituent Relations, who provides regular updates to the Governor regarding the
correspondence received therein. Except for press inquiries, each request submitted via the
Governors web page generates an individual email to this account.

Another email address on the State of Delaware system: Like every previous Delaware
governor in the email era, and as is likely the case with nearly every other governor in America,2

See, e.g., Op. Atty Gen. 14-IB04 (July 18, 2014) (FOIA does not require an agency to make a summary or
compilation of information in public records.); Op. Atty Gen. 03-IB13 (June 2, 2003) (FOIA does not require a
public body to pull[] together information from various sources and arrang[e] it in a format you requested to
create a new public record that did not already exist.).
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 states email system. 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.

The Honorable John A. Kowalko, Jr.

April 15, 2015
Page 2

Governor Markell also maintains another email address on the state system. Like the other
two accounts, this account has a state.de.us domain. And like the other two accounts, this
account is subject to FOIA.3

The reason the Governor maintains a third email address on the state system is probably the same
reason that virtually every chief executive has a direct dial phone line that is distinct from his or her
companys main number. The Governor receives dozens, sometimes hundreds, of communications every
day. Every constituent who reaches out to the Governor deserves to have his or her concerns addressed
in a timely manner. But in many cases, emails sent to the Governor are more appropriately directed to
other staff members. The system described above allows the Governor to direct his attention to those
emails that require his personal and/or immediate response, while directing the remaining messages to
those members of the Governors team who are in the best position to respond appropriately. This is not
about secrecy, but about the most effective and efficient way to manage a heavy volume of electronic
communications.
This point is made clear by taking a snapshot of the emails received by the Governor in his 2
public email accounts on March 27, 2015the day immediately following your letter. On that day, the
Governor received a total of 102 emails in these accounts, including 11 to Jack.Markell@state.de.us and
91 to Governor.Markell@state.de.us. Those communications included, among others, 59 nearly identical
emails from individuals advocating for cleaner air and further reductions in carbon emissions, as well as
16 nearly identical emails from private school parents, grandparents and alumni requesting that the state
retain a private school transportation reimbursement stipend. Other emails to the Governor that day
included:

2 emails inviting the Governor (and presumably hundreds of others) to participate in overseas
conferences, including an International Conference on Cyberlaw, Cybercrime & Cyber
Security in New Delhi, India and an Annual Investment Meeting to discuss sustainable
development in Dubai;4

A petition demanding that the U.S. Government and the United Nations lawfully include
but not limited to recognize the so called African-Americans, Negroes, Blacks, Coloreds, etc.
as Sovereign Hebrew Israelites American Nationals republics of the United States of America
several union states; and

A constituent email that begins with the following quote, incorrectly attributed to John F.
Kennedy: There is a plot in this country to enslave every man, woman and child. Before I
leave this high and noble office, I intend to expose this plot.

Could all of these communications have been directed to a single email account maintained by the
Governor whose address is readily available to all? Yes, but doing so would have made it more difficult
for the Governor to find and respond to the more pressing communications he received that day
including, for example, an email alerting him that a range instructor in the Department of Corrections had
been injured. In addition, if the above-listed emails were sent directly to the Governor, it is likely that he
would have directed most of them to his Director of Constituent Relations to prepare draft responses.
Under the current system, these emails already go directly to the Governors Constituent Relations
Director, skipping that middle step.

Although the Governors third State of Delaware email address is not known to everyone, it is among the worstkept secrets in state government. The News Journal published it several years ago, and members of the media
routinely make specific reference to it when filing FOIA requests.
For the record, the Governor will be attending neither event.

The Honorable John A. Kowalko, Jr.

April 15, 2015
Page 3

The Governor respects and appreciates your efforts to increase government transparency, even if
you are not bound by FOIA yourself. That said, in light of the Governors significant achievements in
making state government more open and transparent, your assertion that the Governor has violate[d] the
spirit of Delawares Open Government Law rings hollow. During his tenure, Governor Markell has
enacted changes to the states Freedom of Information Act that were described by The News Journal as
sweeping and the most wide-ranging since FOIA took effect in 1977. These improvements include:

Limiting administrative fees by (1) prohibiting agencies from charging such fees for FOIA
requests that require an hour or less to process; (2) prohibiting agencies from charging legal
fees; and (3) requiring agencies to charge fees at a rate equal to the lowest-paid employee
capable of performing the service;

Establishing reasonable and uniform copying fees in which the first 20 pages are free, and
after that, charges may not exceed 10 cents per page;

Requiring each agency to appoint a FOIA Coordinator, a single, visible point of contact in
each agency who is responsible for ensuring that FOIA requests are fulfilled; and

Requiring agencies to track all FOIA requests, including the date such requests were received,
the date documents were produced, and other information to promote accountability and to
better ensure compliance.

Thank you for the opportunity to explain the Governors email policy. Should you have any
questions or concerns, please feel free to contact me.

Sincerely,

Andrew H. Lippstone
Chief Legal Counsel