April 15, 2004
New Castle County/Civil Division
The Honorable Gregory Lavelle
House of Representatives
State of Delaware
Dover, Delaware 19901
RE: New Castle County Auditor’s Request to Inspect Records
Dear Representative Lavelle:
You have asked for an interpretation of Title 9 of the Delaware Code § 1408 pertaining to access to records by the New Castle County Auditor. Specifically, you have asked whether the New Castle County Attorney must turn over certain records, regarding payment of legal fees for a former county employee, upon request from New Castle County Auditor Robert Hicks.
Based upon the information you have provided, we conclude that the County Auditor is entitled to review the requested records pursuant to 9 Del.C. §1408.
1. Factual Background.
Based upon information you supplied in your initial letter and attached newspaper article, as well as follow up documentation and e-mails from yourself and County Auditor Robert Hicks (hereinafter “Auditor”), it appears that the Auditor is seeking information and records as to whether New Castle County has paid any legal fees on behalf of former Police Chief, John Cunningham in connection with a federal investigation, the amount of any fees paid, and whether the County would seek reimbursement from Mr. Cunningham. The Auditor requested the information from New Castle County Attorney, Timothy Mullaney, Sr., verbally, followed by two written memoranda from Mr. Hicks to Mr. Mullaney dated December 18 and December 30, 2003. Both memoranda were copied to the County Executive and County Council members and the December 30, 2003 memorandum indicated that responses were requested by several Council members as well as the Auditor.
County Attorney Mullaney has challenged the Auditor’s authority to access these records on the basis that disclosure may interfere with the ongoing federal investigation. In December, 2003, Former Chief Cunningham entered into a plea agreement in exchange for cooperation in the ongoing investigation. Soon thereafter, the Auditor requested the information noted above pertaining to the County’s payment (if any) of Mr. Cunningham’s legal fees.
2. The Statutory Authority of the County Auditor.
As you note, the Delaware Code provides the Auditor with express authority to access county records in the course of his duties. 9 Del.C. § 1408 provides:
In performing his or her duties, the County Auditor shall have access at any time to any and all books, records and accounts of each office, department or board of the County subject to audit by him or her.
“Where the language of [a] statute is unambiguous, no interpretation is required and the plain meaning of the words controls.” Ingram v. Thorpe, 747 A.2d 545, 547 (Del. Supr. 2000). The language of § 1408 is clear and unambiguous and grants the Auditor a wide range of access to “any and all” books, records and accounts of any County office. No exceptions are specified ,and we found no case law limiting or interpreting this statute. Thus, records regarding payments of legal fees by the County would constitute “books, records [and/or] accounts” of the County. Even if the records are held by the County Attorney, the County Attorney is part of the County “Law Office” and therefore an “office” subject to §1408. See 9 Del.C. §1391.
The Auditor’s broad powers of access under § 1408 are to be exercised “[i]n performing his or her duties.” In addition to annual audits of County offices, the Auditor’s statutory duties include: special examinations of “any financial transaction or matter” at the direction of the County Executive or County Council. The County Auditor shall also “provide such assistance to the County Council as the County Council may require of him or her in any matter before it including . . . the appropriation of funds by the County Council.” The Auditor is further empowered to provide information to the County Executive and County Council if he “discover[s] any unauthorized, illegal, irregular or unsound practice . . . .” Based upon the information you have provided, it appears that the Auditor made his request for the records based upon the performance of his duties pursuant to 9 Del.C. §1406 or 1407.
3. The Nature of the Records Sought.
The Auditor is seeking to access books, records and/or accounts concerning the alleged payment of legal fees by the County. As discussed above, the Auditor has a broad grant of statutory power to access “any and all” county records in the performance of his duties. It appears that the information sought here is primarily of a financial nature, a matter clearly within the purview of the Auditor. We are cognizant, however, that records involving legal matters may contain particularly sensitive information. For instance, legal bills may contain reference to the nature of work performed by a lawyer for his or her client, which could implicate matters such as attorney-client privilege or work product, or may, as here, involve ongoing litigation. Such concerns, while valid, do not provide a basis for the County Attorney (or other custodian of records) to withhold their production from the County Auditor under 9 Del.C. §1408.
While this issue has not previously been raised in Delaware, a similar issue was considered by the Appellate Court of Illinois in Wayne Township Board of Auditors v. Vogel, 386 N.E. 2d 91 (Ill. App. 2d 1979). In that case, the Board of Auditors sought records relating to public assistance programs of the township. The township supervisor refused, citing concerns about the confidential nature of the records’ contents. The trial and appellate courts both held that the records must be produced to the auditors.
It is fundamental that a public official may not refuse to comply with a statute on the ground that if he complies with the statutory duty to deliver records the receiving public official might violate the law by disclosing any confidential records.
386 N.E.2d at 93.
We agree. Following the reasoning in Vogel, so long as the Auditor’s request falls within the scope of 9 Del.C. § 1408, the records should be produced to the Auditor, even if the records might be subject to some other confidentiality concerns. Vogel did not state, and we do not opine on, the Auditor’s authority to further disseminate information he might receive pursuant to §1408.
Finally, there is nothing before us to suggest that disclosure of this financial information, pertaining to expenditures of County funds, to the Auditor would interfere with any ongoing federal investigation or legal process. Indeed, the federal investigation and criminal process with respect to former Chief Cunningham has already concluded with his plea arrangement.
In conclusion, it is our opinion that Auditor Hicks is authorized, pursuant to 9 Del.C. §1408, to access the records in question pertaining to payment of legal fees by the County.
If you have any questions, please do not hesitate to contact our office.
Very truly yours,
Stephani J. Ballard
Deputy Attorney General
Malcolm S. Cobin
cc: The Honorable M. Jane Brady, Attorney General
Mr. Philip Johnson, Opinion Coordinator