Can a Delaware state office shield audit working papers from a FOIA request just by calling them confidential?
Official title
22-IB15 04/26/2022 FOIA Opinion Letter to Xerxes Wilson re: FOIA Complaint Concerning the Office of the Auditor of Accounts
Plain-English summary
A Delawareonline reporter asked the Office of the Auditor of Accounts (AOA) for emails between AOA staff (including then-Auditor Kathleen McGuiness) and officials of "My Campaign Group," including Christie Gross, between January 2019 and the request date. He also asked for Elizabeth McGuiness's job title and pay in September 2021. AOA produced records but redacted them under three theories: "working papers" derived from Generally Accepted Government Auditing Standards (GAGAS), personally identifiable data like SSNs and bank numbers, and personnel-file material. The reporter pushed back on all three.
The AG split the result. The personally identifiable data redactions were upheld: long Delaware AG precedent has accepted that bank account numbers and SSNs do not advance government accountability and their disclosure invades privacy. The personnel file redactions were also accepted because Delaware FOIA at § 10002(o)(1) explicitly exempts personnel files whose disclosure would invade privacy, and the reporter did not challenge the legal basis, only the application.
The working papers redactions failed. AOA cited the federal FOIA exemption 5 U.S.C. § 552(b)(3) (which only applies if another statute requires withholding) and 29 Del. C. § 10002(o), but neither statute lists "working papers" as exempt. AOA suggested working papers might fall under deliberative process privilege, but failed to show that Delaware law recognizes that privilege for AOA's records. Defining "working papers" by reference to GAGAS or GAO standards is not a Delaware exemption. The AG ordered AOA to either supplement its response with a real legal basis or release the records without those redactions.
What this means for you
If you are a Delaware state agency thinking about claiming "working papers"
You need a Delaware-rooted exemption to support the redaction. The AG's office will not take a federal accounting standard or a GAO definition as a substitute. Build your argument from one of these: (1) a specific Delaware statute that exempts the records; (2) Delaware case law recognizing the privilege you want to claim (deliberative process is not yet recognized for non-Governor records); or (3) a clear FOIA exemption inside § 10002(o). If you cannot cite one, the redactions will not survive a petition.
If you are a journalist FOIA-ing audit material from a Delaware state office
This opinion is useful precedent. When an agency redacts under a generic "working papers" or "deliberative" theory, push back asking for the specific Delaware statutory or case-law basis. The AG's office cannot do in camera review (only the courts can), but the AG will check whether the agency has articulated and supported a recognized exemption. If the agency cannot, the AG will find a violation and recommend release.
If you are a Delaware state employee whose name appears in audit material
Your personally identifying information (SSN, bank account, home address) is appropriately redactable. Your name and substantive performance information are not necessarily. The personnel-file exemption at § 10002(o)(1) is read narrowly: it covers disclosures that would invade personal privacy, not every reference to a personnel matter.
If you are an attorney advising a Delaware state office
When you draft a FOIA response that relies on an unusual theory, anticipate the AG's burden-of-proof analysis. Provide an affidavit, cite the specific statute or case law, and explain the application to the records you redacted. Generic statements like "these are working papers protected by confidentiality" will not satisfy § 10005(c).
Common questions
What's a "working paper" in audit terminology?
GAO and GAGAS define audit "working papers" or "audit documentation" as the records of audit planning, evidence gathered, procedures performed, judgments made, and conclusions reached. The federal Inspector General context recognizes them as confidential. Delaware FOIA, by contrast, has not adopted that protection in either statute or case law (as of this opinion).
Why was the federal FOIA reference not enough?
The federal FOIA exemption 5 U.S.C. § 552(b)(3) shields records that another statute specifically requires to be withheld, not records that an agency thinks should be confidential by analogy. Citing it as a stand-alone exemption is circular: AOA needed to point to some statute that requires withholding, and it did not.
Does Delaware recognize a deliberative process privilege?
For AG opinions and the Office of the Governor, a limited privilege has been recognized through Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017). The AG opinion noted that working papers could potentially fall under that doctrine, but AOA did not actually articulate that argument with the legal support a court would expect.
Why couldn't the AG do in camera review of the redactions?
Delaware AG opinions consistently rule that the AG's petition process is not a fact-finding forum. Only courts have the procedural tools (under § 10005 court actions) to review withheld records in camera. Flowers directly stated that neither this Office nor the courts are required to perform in camera review. The AG sticks to the question of whether the agency has met its burden of articulating a valid legal basis.
Did the AG decide whether disclosing the auditor's emails would expose actual misconduct?
No. The AG addressed only whether AOA had legally sufficient grounds for its redactions. The substantive question of what the emails would have shown about Auditor McGuiness or My Campaign Group was not before the AG.
Background and statutory framework
The reporter's October 27, 2021 FOIA request asked for staff emails to and from My Campaign Group officials between January 2019 and the request date, plus Elizabeth McGuiness's title and September 2021 pay. AOA responded on November 18, 2021 with notice that more time was needed for the email request and provided the requested information about Elizabeth McGuiness's intern title and one-paycheck pay. After multiple delays (volume of records, COVID-related staff absences), AOA produced redacted emails on February 25 and 28, 2022. The redactions were grouped into three categories: working papers, personally identifiable data, and personnel matters or ongoing litigation. By the time AOA replied to the petition on April 5, 2022, it had dropped the litigation theory and was defending only working papers, PII, and personnel-file redactions.
Under § 10005(c), the public body bears the burden of justifying a denial. Judicial Watch v. Univ. of Del. (Del. 2021) suggests sworn evidence is sometimes required. The AG cannot perform in camera review of withheld records; that is reserved for the courts (Flowers v. Office of the Governor, Del. Super. 2017, plus AG Opinion 18-IB36).
For the working-papers theory, AOA cited 5 U.S.C. § 552(b)(3) and § 10002(o). The AG found that § 552(b)(3) only carries through other statutes that require withholding, and § 10002(o) lists seventeen exemptions, none of which is "working papers." AOA suggested deliberative process privilege as the underlying basis, but did not articulate why Delaware would extend that privilege to the AOA's records.
For PII, the AG followed long-standing precedent (06-IB17 from 2006, citing Judicial Watch v. Export-Import Bank (D.D.C. 2000)) that bank account numbers and SSNs are not necessary for accountability and disclosing them would invade privacy.
For personnel files, § 10002(o)(1) explicitly exempts personnel files whose disclosure would invade personal privacy. The reporter did not challenge that legal basis, only its application; the AG cannot do an application-to-specific-records review in this forum.
Citations
- 29 Del. C. §§ 10001-10007 (Delaware FOIA)
- 29 Del. C. § 10002(o) (definitions and exemptions)
- 29 Del. C. § 10002(o)(1) (personnel file exemption)
- 29 Del. C. § 10002(o)(6) (records exempted by statute or common law)
- 29 Del. C. § 10005 / § 10005(c) (petition procedure and burden of proof)
- 5 U.S.C. § 552(b)(3) (federal FOIA exemption for records protected by other statute)
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. 2017)
- Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19 (D.D.C. 2000)
- Del. Op. Att'y Gen. 06-IB17, 2006 WL 2630107 (Aug. 21, 2006)
- Del. Op. Att'y Gen. 17-IB19, 2017 WL 3426259
- Del. Op. Att'y Gen. 18-IB36, 2018 WL 3947261 (Aug. 10, 2018)
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/04/26/22-ib15-04-26-2022-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-the-office-of-the-auditor-of-accounts/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/04/Attorney-General-Opinion-No.-22-IB15.pdf
Original opinion text
PRINT VERSION: Attorney General Opinion No. 22-IB15
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB15
April 26, 2022
VIA EMAIL
Xerxes Wilson
RE: FOIA Petition Regarding the Office of the Auditor of Accounts
Dear Mr. Wilson:
We write in response to your correspondence alleging that the Office of the Auditor of Accounts ("AOA") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with regard to your October 27, 2021 FOIA request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we determine that AOA has violated FOIA by failing to sufficiently justify its redactions in the produced documents and recommend that it supplement its response.
BACKGROUND
On October 27, 2021, you submitted a FOIA request to the AOA, requesting "[a]ll emails among staff in the Delaware State Auditor's office including Auditor Kathleen McGuiness and officials for My Campaign Group, including Christie Gross sent between January 2019 and present" and "[r]ecords reflecting the job title of Elizabeth McGuiness as of Sept[ember] 21, 2021 as well as Elizabeth McGuiness' pay in Sept[ember] 2021." [1]
On November 18, 2021, AOA notified you that it would require additional time to complete one part of your request, because the first request for emails required legal advice and AOA was determining how voluminous the request may be and the length of time to fulfill it. AOA appeared to provide sufficient documentation to satisfy your second request, indicating the Elizabeth McGuiness' job title was intern and received one paycheck in September 2021. [2] AOA sent a follow up email on January 6, 2022 stating that the email request was voluminous and anticipated having the responsive documents to you within two weeks. [3] On January 20, 2022, AOA responded that due to Covid related staff member absences, it would be unable to produce the requested emails at that time. [4] In a later correspondence, AOA anticipated having the request completed by February 25, 2022. [5]
On February 25 and 28, 2022, AOA produced multiple email documents from Christie Gross to AOA employees. [6] AOA redacted portions of the communications on the basis of "[d]etails of audits and other engagements between team members (known as 'work papers'), [p]ersonally identifiable data, such as bank account numbers of Social Security numbers, and [a]ny information related to personnel matters or ongoing litigation." [7]
In response, you filed a request for a determination as to whether AOA violated FOIA law. This Petition followed.
The Petition asserts the emails produced were heavily redacted and some appear to include redactions that would not fall into any of the categories cited for redaction in AOA's response. [8] You argue that: (1) the "work papers" exemption cited does not have statutory authority for which you are aware, and if it does have statutory authority, it is misplaced; (2) the personally identifiable data exemption does not have statutory authority for which you are aware and you believe it has been misapplied; and (3) the "personnel matters" or "potential or ongoing litigation" are misplaced, as the email communications requested would not contain the narrow interpretation of personnel matters and that you are not a party to any litigation involving AOA. [9] You argue that the pending litigation exemption "turns on the identity of the requestor and the purpose of the request" and since you are not a party to any litigation involving the State government or the AOA, the exemption should not apply. [10] You further argue that the only potential litigation is the pending criminal case against Auditor Kathy McGuiness and it is not clear if the pending litigation exemption applies to criminal cases. [11] You request that this Office conduct an in camera review of responsive documents to assess the legitimacy of the redactions included in the auditor's response and determine whether a violation of FOIA has occurred. [12]
AOA, through its Deputy Auditor, replied to the Petition on April 5, 2022 ("Response"). AOA explains that it believes Mr. Wilson is taking issue only with respect to his request for the emails among staff in AOA, including Auditor Kathleen McGuiness and officials for My Campaign Group, including Christie Gross sent between January 2019 and present. AOA explains that it provided a copy of Ms. Elizabeth McGuiness' one paycheck from September 2021 and an explanation that her job title was intern and Mr. Wilson's petition does not take issue with that.
AOA asserts that it compiled a voluminous number of records, sorted them, and removed duplicates, and made several redactions pursuant to 29 Del. C. § 10002(o). The Deputy Auditor, Tori Ann Parker, signed a sworn affidavit that in AOA's search to answer Mr. Wilson's FOIA request, it printed all the requested email communications, reviewed, and duplicate communication was removed, and confidential information redacted. The Deputy Auditor asserts that AOA's redactions were made for three categories of information: (1) working papers, characterized as engagement planning, nature, timing, extent, legal and regulatory requirements, auditor procedures, evidence gathered, significant judgements, and subsequent information considered "working papers" by the Generally Accepted Government Auditing Standards (GAGAS) produced by the United States Government Accountability Office (GAO); (2) personally identifiable data; and (3) personnel file material. [13]
DISCUSSION
As an initial matter, you request that this office make a determination whether a violation of FOIA has occurred and to conduct an in camera review of responsive documents to assess the legitimacy of the redactions included in the auditor's response. [14] Under Delaware's FOIA law, this Office nor the courts are required to conduct an in camera review of withheld records. [15] This Office has previously held that only a court with its ability to order in camera review can make that analysis. [16] Rather, our inquiry is limited to whether or not the public body provided sufficient reasons for withholding the redacted information to satisfy its burden of proof. [17]
Under FOIA, a public body carries the burden of proof to justify denial of a request for records. [18] Public record is defined as information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced. [19] By statute, the definition of "public record" excludes "any records specifically exempted from public disclosure by statute or common law." [20]
Your petition asserts that AOA's reasons for redactions are either not recognized FOIA exemptions or are misapplied. AOA, as the public body with the burden of proof, submitted three exemptions for its redactions.
First, AOA asserts that working papers are confidential pursuant to "5 U.S.C. § 552(b)(3) Deliberative Process Privilege as 29 Del. C. § 10002(o) protects records exempt under common law." [21] AOA gives a definition of working papers from Generally Accepted Government Auditing Standards (GAGAS) by the Governmental Accountability Office (GAO). [22]
The problem, however, is that 5 U.S.C. § 552(b)(3) only states that § 552 [referring to FOIA laws] "does not apply to matters that are specifically exempted from disclosure by statute…if that statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or establishes particular criteria for withholding or refers to particular types of matters to be withheld; and, if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph." [23] Nothing in § 552(b)(3) establishes (or recognizes) a "working papers" privilege. AOA's reliance on 29 Del. C. § 10002(o) has the same problem, § 10002(o) excludes from FOIA certain records in seventeen specific exemptions. [24] "Working papers" is not specifically stated in these exemptions.
AOA suggests that working papers are protected by a deliberative process privilege and explains that working papers are something recognized by both the GAO and GAGAS. It may be true that working papers could be exempted from FOIA through the deliberative process privilege, but the problem with AOA's response is that it fails to provide any legal basis (statute, caselaw, etc.) that would allow this Office (or the public) to conclude that working papers have been recognized as exempt from FOIA in Delaware. More directly, AOA needs to explain why its working papers are subject to the deliberative process privilege and then explain that the deliberative process privilege has been recognized in Delaware such that the AOA's working papers are exempt from FOIA. [25] For these reasons, AOA has not met its burden to justify its redaction based on a purported working papers exemption.
Next, AOA asserts that some redactions were for personally identifiable data, such as bank account numbers or Social Security numbers. [26] You question the statutory basis for this exemption. [27] This Office has previously held that personally identifiable data like bank account numbers or Social Security numbers is not essential for government accountability and disclosure of such information would invade personal privacy. [28] We maintain that redactions based on bank account numbers or Social Security numbers is not a violation of FOIA.
Finally, AOA cites personnel file material as its third reason for redactions. Personnel files whose disclosure would be an invasion of personal privacy are exempted from FOIA by statute. [29] Your petition appears to take no issue with the legal basis for personnel file material but argues that it is misplaced. [30] Personnel files, which would constitute an invasion of personal privacy is statutorily exempted under Delaware law. [31] While you dispute the application of this exemption, this Office's inquiry is limited to assessing whether the State agency properly raised and explained its decision to make redactions. Accordingly, we cannot assess the underlying legal validity of the application of its reasons for redactions.
We find that AOA has violated FOIA. AOA may either supplement its response with the legal basis for its working papers redactions, or release the requested documents without those redactions.
CONCLUSION
For the foregoing reasons, it is our determination that AOA has violated FOIA by failing to sufficiently justify its redactions in the responsive documents. AOA may either supplement its response with the legal basis for its working papers redactions, or release the requested documents without those redactions.
Very truly yours,
/s/ Alexander S. Mackler
Alexander S. Mackler
Chief Deputy Attorney General
cc: Patricia A. Davis Deputy State Solicitor
Victoria Groff, Assistant Attorney General
[1] Petition Supporting Documents, p. 7, 8, 210.
[2] Id., p. 7.
[3] Id., p. 6.
[4] Id., p. 5.
[5] Id., p. 5.
[6] Id.
[7] Id.
[8] Id., p. 1.
[9] Id.
[10] Id., p. 1 citing Del. Op. Att'y Gen. 03-IB21, 2003 WL 22669566.
[11] Id., p. 1.
[12] Id., p. 2.
[13] It appears that AOA initially indicated that some redactions were based on potential or ongoing litigation. See Petition Supporting Documents, p. 3. However, in its Response to this Office, it claimed no redactions based on potential or ongoing litigation.
[14] Petition Supporting Documents, p. 2.
[15] Flowers v. Office of the Governor, 167 A.3d 530, 548-49 (Del. Super. 2017).
[16] See Del. Op. Att'y Gen. 18-IB36, 2018 WL 3947261, at FN 13 (Aug. 10, 2018).
[17] Flowers v. Office of the Governor, 167 A.3d at 549.
[18] 29 Del. C. § 10005(c).
[19] 29 Del. C. § 10002(o).
[20] 29 Del. C. § 10002(o)(6).
[21] Response Supporting Documents, p. 1, 2.
[22] Id., p. 2.
[23] 5 U.S.C. § 552(b)(3).
[24] 29 Del. C. § 10002(o).
[25] It does not appear that AOA is suggesting that working papers are draft documents, but if that is the case, AOA needs to clearly state that.
[26] Response Support Documents, p. 2.
[27] Petition Supporting Documents, p. 1.
[28] Del. Op. Att'y Gen. 06-IB17, 2006 WL 2630107, at *8 (Aug. 21, 2006) citing Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 37 (D.D.C. 2000).
[29] 29 Del. C. § 10002(o). See Del. Op. Att'y Gen. 17-IB19, 2017 WL 3426259.
[30] Petition Supporting Documents, p. 1.
[31] 29 Del. C. § 10002(o)(1).