Del. Governor's Office Fights AG Opinion on Withholding of Email - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Del. Governor's Office Fights AG Opinion on Withholding of Emails

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Former Delaware State Treasurer Chip Flowers Former Delaware State Treasurer Chip Flowers

DOVER, Del. (AP)- Delaware Gov. Jack Markell has filed a court challenge to an attorney general's opinion directing his 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 last year seeking emails sent or received by administration officials that referred to Flowers, his former deputy treasurer, the state's Cash Management Policy Board, and certain board members.
    
In response, 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 staffs.
    
After Flowers challenged the denial of records, the attorney general's office said in March that 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 emails solely on the basis that they were sent by a lawmaker or legislative staff member, without regard to the content or context of the emails.
    
In at least one instance, it appears Markell's office refused to provide an email to Flowers simply because the legislature's controller general, who is also a member of the Cash Management Policy Board, was copied on it.
    
Flowers filed a court appeal in May challenging the attorney general's opinion regarding both the privilege exemptions and the legislative exemptions.
    
In a cross-appeal filed a few days later, Markell's office claims that state law does not require it to review, or explain its rationale for, its withholding records under the legislative exemption.
    
Markell is asking the court to declare that any public body can withhold any emails received or sent by state lawmakers or their staffs.
    
In his FOIA request, 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. Barney lost the general election and is now running for Congress.
    
Flowers' deputy treasurer, Erika Benner, resigned in 2013 after repeatedly misusing her state credit card. She and Flowers, the only black person ever elected to statewide office in Delaware, also came under scrutiny for expenses incurred during a trip to Alaska, which resulted in reimbursements by both to the state.

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