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Dewey Beach arrests open government advocate

Last week, a citizen of Dewey Beach, DE, was arrested for theft of a draft audit report which was handed out at the town's Audit Committee meeting.  Jeffrey Smith, a long-time open government advocate who has been closely watching the work of Dewey Beach's Audit Committee, received the report at the committee meeting and took it with him at the conclusion of the meeting.  Reporters from the Cape Gazette and other news outlets were also present at the meeting and received the same report.  After the meeting, the committee chair demanded the draft report be returned.  Reporters complied, after making a copy of the report.  Jeffrey Smith did not comply.

That decision led to Mr. Smith's arrest for theft and disorderly conduct as well as a no contact order prohibiting Mr. Smith from contacting the Dewey Beach Audit Committee of the Dewey Beach Council.  There is no precedent for the actions of the Dewey Beach Audit Committee.  Chuck Tobin, media law partner at Ballard Spahr and MDDC Legal Hotline counsel noted "'draft' or not, a document distributed at a public meeting, by public officials, is presumptively a public record.  Leaving the meeting with the report – and even publishing it – is not a criminal act.  In fact, given the obvious public interest in a government audit record, publishing the report is fully protected by the First Amendment."

The Cape Gazette has been following this story and reported that Diane Tenhoopen has stepped down from the Audit Committee after being told she would be removed if she questioned the actions of the committee.  In its editorial, they comment "government should encourage citizens to obtain and read civic documents, especially one about the handling of funds by the police department. That those same police are charging a person with theft of a public document shows dissent is not welcome in Dewey Beach.

What happened to campaign promises of transparency? Transparency requires open records, accountability and listening to dissent. Arresting a citizen for pursuing his right to review public records is the opposite of transparency. These charges send a chilling message that anyone who demands accountability in Dewey Beach will face harassment from a police force mired in ongoing controversy.

When a citizen steps down citing intimidation and another is arrested for theft of a public document, government cannot claim transparency. As each edition of the Cape Gazette states, the price of liberty is eternal vigilance."

The Dover Post has also been following this story, reporting that "the Dewey Beach Police Department had been receiving property from a federal military surplus program without town oversight or proper accounting. In addition, the Dewey Beach Patrol competition team had an off-the-books bank account and was accepting donations without nonprofit status." 

Rebecca Snyder, MDDC executive director, comments that "Jeff Smith is not a criminal.  The MDDC Press Association, representing news media organizations in Delaware, Maryland and the District of Columbia, condemns the actions of the Dewey Beach Audit Committee which charged Mr. Smith with disorderly conduct and theft of a draft audit report.  Citizens have the right to know how government is transacting business on their behalf and government should provide easy and open access to documents to encourage citizens’ knowledge and oversight.  The arrest of Mr. Smith sends a chill down the spine of open government advocates everywhere.  This is bold intimidation of the public and a clear message by the Audit Committee that the members do not see themselves as accountable to the public."

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