Former state treasurer has FOIA issues with Delaware

Chip Flowers

Chip Flowers

DOVER — After grappling with state officials for months over the cost of providing copies of his emails while in office, ex-State Treasurer Chipman L. “Chip” Flowers Jr. seemed comfortable with the resolution.

Mr. Flowers petitioned the Delaware Attorney General’s Office over a year ago alleging the Office of the State Treasurer (OST) violated the Freedom of Information Act multiple times while handling his request for over 19,000 emails sent and received through his state account from 2011 to 2015,

On Sept. 30, Chief Deputy Attorney General Danielle Gibbs issued an opinion that the OST overestimated the more than $15,000 in costs to fulfill the request, but discounted several other claims received from Mr. Flowers on Aug. 4, 2015.

According to Mr. Flowers on Friday, he had received a revised charge of $1,500 for the emails, which the OST will send on CDs after receiving payment.

Finding in favor of Mr. Flowers, the DAG determined that the OST violated FOIA when estimating the fees adding charges for “legal review” that were improper. The AG’s office urged the OST send a revised estimate following proper guidelines.

Otherwise, the DAG found that claims involving photocopying and administrative fees, opportunity to view the records, a dispute of emails already in possession, and “obstinate tactics” by the OST had no merit.

“I think the AG’s office was fair and did a great job considering the matter,” Mr. Flowers said. “You don’t win everything on an appeal, but won on the main point we were trying to make.”

The AG noted that appealing to Superior Court within 60 days of the determination is an option.

An email attempt to reach the OST for comment was unsuccessful.

“We see nothing in the record that amounts to a threat, explicit or veiled, by any state employee to impose inappropriate charges upon Mr. Flowers in order to discourage Mr. Flowers from pursuing his requests under FOIA,” the DAG wrote.

‘Colossal waste’

Mr. Flowers described the time spent litigating and reviewing the request as a “colossal waste of taxpayer money” and that the AG’s office “has sent a message that these stall tactics have to stop and the public is entitled to information at a reasonable cost and time spent.”

During a stormy four-year tenure as state treasurer, Mr. Flowers was embroiled in controversies regarding travel expenses, the role of the state’s Cash Management Policy Board, and some media he claimed unfairly portrayed him. He ended a re-election campaign on Aug. 28, 2014 and has since relocated to Massachusetts.

Mr. Flowers said he now serves as Deputy General Counsel for the Massachusetts Democratic Party and may run for office again “sometime down the line.” He’s enjoying his family – especially his 1-year-old daughter – while still managing his Flowers Counsel Group company.

Billing it as the “Flowers Papers Project” Mr. Flowers wants to archive his emails and other items to chronicle what he believes are “significant achievements and contributions during his tenure as state treasurer,” according to the DAG’s opinion.

Mr. Flowers projects the online history of his tenure to “provide an unparalleled level of information to the public highlighting the historic policy debates, decisions, and achievements made by Mr. Flowers and his administration during his term in public office.”

The first request

The sequence in question began on Jan. 6, 2015 when Mr. Flowers requested all of his state-related emails from the OST, asking for notice if the cost exceeded $500, according to relevant facts reviewed by the AG’s Office.

The first estimated $100 cost on Jan. 26, 2015 covered the Delaware Division of Technology and Information’s (DTI) gathering the emails and burning them onto a CD for delivery to the OST. The AG noted that Mr. Flowers responded that he would send a check.

The OST had received approximately 24,000 emails for review by Feb. 3, 2015, according to the opinion, and determined a significant amount of time was needed to review what was available under FOIA exemptions. Mr. Flowers was told the cost would exceed $500.

When the OST suggested that narrowing the scope of emails sought would cut cost, Mr. Flowers responded that he didn’t believe the fee would be cost prohibitive for all of them, the opinion noted.

Reviewing the emails would account for most of the cost according to the OST’s FOIA coordinator, referencing the likely five or six seconds each spent opening roughly 24,000 transmissions.

“We are willing to comply with the request but the cost will go well beyond the $500 mark simply due to the sheer volume of the original request,” said the FOIA coordinator, who followed with “We are happy to discuss this with you over the phone.”

Mr. Flowers indicated he would consider narrowing the search. and State Treasurer Ken Simpler, copied on the email, responded “I just wanted you to know that we are trying to be responsive.”

On Feb. 4, 2015, however, Mr. Flowers informed the OST that he was opting not to change the original request. The next day, he broadened the scope of the request to include some communications by the Delaware Department of Justice, according to the opinion, asking for contact if the cost exceeded $500.

Among his claims, Mr. Flowers said he requested electronic records that could lower fees significantly, but the DAG found that the OST can’t currently redact emails electronically, and thus must print them. OST offered to provide them electronically upon redaction.

Itemized costs presented

On Feb. 8, 2015, the FOIA coordinator provided Mr. Flowers with itemized costs for his second request totaling $15,245.24, not including any fees due to DTI.

The coordinator estimated 785.13 hours of administrative time were needed to process 23,554 emails at a rate of $13.42 hourly, the lowest salary of a staffer capable of completing the task. Also, included were photocopying costs of approximately 47,108 pages of emails.

The OST estimated administrative review fees of $10,536.44 and photocopying costs of $4,708.80.

Mr. Flowers disputed that all emails needed to be reviewed on Feb. 26, 2015, citing some criteria including those received by a third party and some previously released emails in an earlier FOIA request.

The next day, the OST suggested having Mr. Flowers review the emails in person and choose ones for review regarding potential disclosure issues as an alternative.

According to the opinion, Mr. Flowers expressed interest in the offer, provided he was joined by an assistant or legal representative to review the emails and analyze privilege concerns.

When Mr. Flowers requested a status update on March 16, 2015, the OST notified him that separate legal counsel had been retained for evaluation and “to work with the Attorney General and Office of the Attorney General to resolve [t]he matter.”

OST counsel suggested that lessening the scope of the request would require additional costs when handled by DTI due to time intensive labor.

Due to potential confidential or privileged information that might emerge, Mr. Flowers’s bid to bring additional personnel with him was denied by counsel.

‘Significant progress’ made

According to the opinion, Mr. Flowers believed the parties had made “significant progress” during a teleconference on March 23, 1015.

Search instructions Mr. Flowers sent to the OST on April 6, 2015 did not narrow the search except for one exception, the opinion said. The applicant detailed four specific search parameters for emails he maintained were covered under Delaware law.

The OST requested to communicate with Mr. Flowers before sending the new request to DTI But “it is not at all clear to us that those search items will address, with certainty, the exclusion of confidential non-public records (i.e. emails) to which you are not entitled, thereby reducing the number of responsive emails for review prior to providing you access.”

The OST and Mr. Flowers also grappled over proposed cost-reducing software on April 14, 2015 that he would provide to avoid a “grossly unreasonable” search fee of $100 to $200 for added searches.

The OST rejected Mr. Flowers request for a meeting on May 8, 2015, maintaining that “there were no outstanding issues and, as a result, did not believe a meeting was necessary.” Also, counsel believed Mr. Flowers April 6 search terms were unclear.

On May 9, 2015, Mr. Flowers opted not to accept the OST’s “alternative” review process and communicated, “From our perspective, start producing the documents as you and I both know we would have no problem seeking a court order mandating the production with minimal costs.”

Threatening legal action

Mr. Flowers threatened Mr. Simpler and the OST with “legal action” on May 28, 2105, if a plan to provide requested documents was not received within five business days. He said he was open to a six-month delivery process, according to the opinion, and did not alter his stance on the cost estimate.

OST counsel suggested to Mr. Flowers on June 9, 2015 that he review in person roughly 19,000 emails provided by DTI.

Also, OST counsel said it found Mr. Flowers had received copies of all his requested emails in December 2014 while in office, most of which were part of the current FOIA request. Thus, counsel maintained, “Except for reviewing and providing copies (redacted as necessary) of emails Mr. Flowers requested for … (mid December through Jan. 1, 2015) or which Mr. Flowers selects during his on-site review of the CD’s at the Carvel Building, OST will consider both requests closed and obligations under [FOIA] fulfilled …”

With that, according to the opinion, Mr. Flowers countered that his “legal team [wa]s conferring on an appropriate response. …”

On July 29, 2015, Mr. Flowers re-stated his position and said if “OST declined to engage in the proposed resolution (he would) appeal the matter to the Attorney General’s Office and/or the Delaware Superior Court.”

Results from an Aug. 3, 2015 teleconference left all parties believing some issues had been resolved or rendered moot, according to the opinion.

The next day, though, Mr. Flowers filed a petition to the AG’s Office. He wrote to the AG on Aug. 27, 2015 stating no desire for “a selected subset of the non-exempt documents.” He believed every email the OST had was “necessarily d admittedly responsive” and the only action needed was determining if any were “exempt from public disclosure.”

Reach staff writer Craig Anderson at canderson@newszap.com

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