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Delaware AG: Office of embattled state auditor violated FOIA

October 25, 2021 GMT

DOVER, Del. (AP) — The office of Delaware’s embattled state auditor violated the state’s Freedom of Information Act over a period of several years by failing to properly maintain logs of public records requests, the attorney general’s office has determined.

In an opinion issued Monday in response to a petition from The Associated Press, the Department of Justice found that the Office of the Auditor of Accounts, or OAOA, failed to maintain its FOIA logs as required by law over a period of more than three years.

State Auditor Kathleen McGuiness, who was indicted two weeks ago on public corruption charges, did not immediately respond to an email seeking comment.

McGuiness, 58, is charged with felony counts of theft and witness intimidation, and misdemeanor charges of official misconduct, conflict of interest and noncompliance with state procurement laws. McGuiness, through her attorney, has denied the allegations and maintained that she has done nothing wrong.

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The FOIA violation stems from a request submitted by the AP in early September for the auditor’s FOIA logs from 2018 to the present.

Under Delaware law, public bodies are required to maintain logs documenting the public records requests they receive. The information that must be tracked includes — at a minimum — the submission, review, response and final disposition dates, the response deadline, and the requesting party’s contact information.

Public bodies also must document the names of all individuals who reviewed the FOIA request, and the names, contact information and dates of correspondence with individuals contacted in connection with the request. They must also note whether the records were made available, and the amount of any fees that were assessed.

On Sept. 17, having not received a response to its FOIA request, the AP sent an email asking for an update.

In response, Chief Deputy Auditor Amy Gulli, the FOIA coordinator for the auditor’s office, said she could not find any FOIA request. The AP subsequently determined that the online FOIA portal was sending records requests to a defunct email account for a former employee of the auditor’s office.

On Sept. 22, Gulli provided FOIA logs for January 2019 to the present that contained only the names of records requesters and the submission, response deadline, response and final disposition dates.

“This is the information we track and the format we track it in,” wrote Gulli, who also said the FOIA log for 2018, the year before McGuiness took office, could not be found.

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The AP informed Gulli that the logs did not comply with the law, and that it would give the office five business days to provide the required records before seeking an opinion from the attorney general’s office. Gulli acknowledged receiving the follow-up email, but no additional records were provided.

The AP submitted it’s petition to the attorney general’s office on Oct. 4.

Instead of submitting a response to the DOJ, Gulli on Oct. 13 provided the AP with new versions of the FOIA logs with information that had been previously omitted, including contact information for records requesters and details on the records that they sought. She also provided a copy of the 2018 FOIA log.

“After an exhaustive search of OAOA’s files and records, I am pleased to attach the office’s FOIA logs from 2018 through 2021 year to date, as you requested,” Gulli wrote, adding that she believed the logs for 2019 through 2021, “contain all of the information OAOA is legally required to track for each request.”

The lone record request for 2020 sought, among other things, all contracts awarded by McGuiness’ office since the start of the fiscal year, and all emails between McGuiness and Christie Gross during that time period. Gross is the founder and president of My Campaign Group, which was awarded a no-bid contract that was part of the criminal investigation that led to McGuiness’ indictment.

On Oct. 15, Patricia Davis, deputy state solicitor in Kent County, told the DOJ that the FOIA issue was moot because the auditor’s office “was able to go through old records and recreate the FOIA log to comport with the statutory requirements.”

But the DOJ agreed with the AP that the provision of the missing information did not render the FOIA violation issue moot.

“The issue involves historical conduct spanning more than three years and two administrations and may not escape review merely because AOA was able to produce responsive documents,” wrote Chief Deputy Attorney General Alexander Mackler.

“Absent complete and accurate records, FOIA’s open records provisions would be of little practical utility in furthering the accountability of government to the citizens of this state,” he added.