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AG asks governor’s office to review withholding of emails

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DOVER, Del. (AP) — The Delaware attorney general’s office is asking Gov. Jack Markell’s office to review its handling of a Freedom of Information Act request from former state treasurer Chip Flowers.

An archive established by Flowers filed a FOIA request a year ago seeking emails sent or receive by Markell and other administration officials that referred to Flowers, his former deputy treasurer, Erika Benner, the state’s Cash Management Policy Board, and certain board members.

Flowers specifically sought the emails of Markell, his chief of staff, Secretary of State Jeff Bullock and Finance Secretary Tom Cook. He also sought the emails of Sean Barney, a former policy director for Markell who ran against Flowers in 2014 before Flowers dropped out of the Democratic primary.

Benner resigned in 2013 after repeatedly misusing her state credit card. She and Flowers also came under scrutiny for expenses incurred during a trip to Alaska, which resulted in reimbursements by both to the state. Benner later filed a harassment complaint against Flowers. He was cleared by police, but not before ending his re-election bid, saying he was tired of fending off false accusations regarding Benner.

In response to Flowers’ FOIA request, Markell’s office said some emails were exempt from disclosure by statute or common law, while others could be withheld because they were received from or sent by members of the General Assembly or their staff.

In an opinion issued Monday, the attorney general’s office said Markell’s office did not violate FOIA when it withheld documents protected by statute or common law, including those withheld under attorney-client privilege or “executive privilege.”

But Chief Deputy Attorney General Danielle Gibbs said her agency was unable to determine whether Markell’s office violated FOIA by withholding some records solely on the basis that a lawmaker or General Assembly staffer sent or received an email, without regard to the content or context of the email.

“The governor’s office has not persuaded us that doing so is proper,” wrote Gibbs, who asked Markell’s office to review any emails withheld solely on the basis of the legislative exemption, and to explain the basis for withholding any of them.

In at least one instance, it appears an email was withheld simply because the legislature’s controller general, who is also a member of the Cash Management Policy Board, was copied on it.

“One might reasonably argue that in order to be covered by (the exemption) an email must at least relate to the General Assembly’s primary role of enacting laws,” Gibbs wrote, acknowledging that an “unscrupulous” person could shield an email simply by copying in a lawmaker or legislative staffer.

“…. What we can say comfortably at this point is that an overly-broad application of the exemption would run counter to the spirit of Delaware’s FOIA and the well-accepted principle that its exemptions are to be narrowly construed, but that there appears to be at least some consensus in the General Assembly that its emails and other communications with constituents should be protected.”

Gibbs said the attorney general’s office would not address Markell’s argument that his office did not need to provide records to Flowers because he no longer is a Delaware citizen, as that argument was not made previously.

Flowers said Monday that he wants the information so that the public can have an accurate picture of his relationships with other state officials, his power struggles with members of the Cash Management Policy Board, and the controversies surrounding Benner.

“The issue is whether or not the administration can continue to not disclose these important documents to the public,” he said, describing the opinion as “a victory for the public.”

Markell’s chief legal counsel, Meredith Stewart Tweedie, said state officials are reviewing the opinion.

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