The Delaware Supreme Court will deliberate on whether the University of Delaware violated the state’s Freedom of Information Act (FOIA) in denying requests related to President Joe Biden’s U.S. Senate records.
More than 1,850 boxes of archival records and 415 gigabytes of electronic records from Biden’s time in the Senate are currently housed at the University of Delaware.
In April 2020, the conservative nonprofit Judicial Watch and Daily Caller News Foundation sought access to those records and communications related to their donation via FOIA requests.
Legal Battle
“We need to probe what steps the university took,” argued Bill Green, attorney for Judicial Watch and Daily Caller News Foundation, on June 14.“There’s been a bare minimum of representations as to what they’ve done, and they’ve relied on these categorical determinations—categorical determinations we don’t believe are fair and need to be tested through an adversarial process.”
Initially, the two appellants filed separate petitions with the Delaware attorney general’s office seeking a review of the university’s denial of their requests.
Judicial Watch and Daily Caller News Foundation appealed that determination to the state’s Superior Court. That court ultimately sided with the university and the attorney general’s office, but when the appellants took their case to the Delaware Supreme Court, they received their first partial victory.
In December 2021, the state Supreme Court found that the University of Delaware had not sufficiently detailed its efforts to prove that the requested documents were not public records subject to FOIA.
In response to that ruling, the University of Delaware filed a supplemental affidavit from the school’s FOIA coordinator, Jennifer Becnel-Guzzo.
In her affidavit, Becnel-Guzzo disclosed that she did not conduct a search in response to the appellants’ requests but relied on her previous communications in January 2020 with university personnel regarding similar requests involving Biden.
Those communications, she attested, confirmed that public funds were not used in the custody and curation of Biden’s records, thereby disqualifying them as public records.
She added that her previous review of the gift agreement between Biden and the school had revealed that it did not mention state funds.
Burden of Proof
Now back before the Supreme Court, Green argued on June 14 that the Superior Court’s October ruling was erroneous.The affidavit, he said, “does not satisfy the university’s burden of proof for three reasons: Most importantly, it is ambiguous.
“Second, the university performed no search related to the requests. It reviewed no documents apart from the gift agreement but rather relies on previous inquiries of university staff.
“And finally, the supplemented affidavit is largely based on hearsay.”
However, arguing on behalf of the University of Delaware, attorney William Manning said that the university did not need to conduct a search to know that the requested documents did not qualify as public records.
“We can say, without looking at that document, that there are no responsive documents if you know that no state funds were spent on the university’s custody and curation of the Biden documents,” Manning said.
Justice Abigail LeGrow, however, pushed back on that assertion, noting that the Supreme Court’s prior opinion had found that it was not clear “on the face of the requests” for the gift agreement or communications records that they were not subject to FOIA.
She also stressed the court’s ruling that the university would need to create a record from which the court could determine whether an adequate search was conducted.
“What I think you’ve just said over the last few minutes and what your brief acknowledges is that you didn’t perform a search,” she said. “So, how could this court ever conclude that what you did is consistent with its prior decision?”
Manning responded that his reading of the court’s prior opinion led him to believe that if it was clear on the face of the requests that there were no responsive documents, the requests could be denied.
Meanwhile, Justice Karen Valihura questioned how the court could be sure that the FOIA coordinator’s previous communications with university personnel were still reliable and accurate given the amount of time that had passed since the requests in question were made.
‘Implausible’
Another line of argument Green pursued was that it seemed “implausible” that the gift agreement between Biden and the university would not in some way relate to the expenditure of state funds, even if only to specify that state funds would not be used to maintain the records.But LeGrow seemed skeptical of that reasoning as it could be construed to encompass any university document “that relates in any way to the expenditure of funds.”
The justice also noted that, in the case of the agreement, the FOIA coordinator had attested to reviewing that document herself.
“She says it. It’s under oath. She’s a member of this bar. Why should the Superior Court of this court not take her at her word?”
Green responded that his team would still like a sworn statement that specifies whether the document addresses the expenditure of funds and, if not the state, the source of the funds that are covering the documents’ upkeep.
Similar Cases
The hearing came one day after former President Donald Trump pleaded not guilty to 37 federal charges relating to his handling of classified documents.Trump is being prosecuted by special counsel Jack Smith after boxes of classified documents were found at his Florida home of Mar-a-Lago.
Biden, like Trump, is also under federal investigation for retaining classified documents from his time as vice president and as a U.S. Senator.
The discovery late last year of such documents at his Wilmington, Delaware, home and the University of Pennsylvania’s Penn Biden Center led the FBI to conduct two searches of the University of Delaware for additional documents.
It remains unclear whether those searches yielded any classified materials.
