Judicial Watch Inc. v. Delaware Department of Justice ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUDICIAL WATCH INC., a District of
Columbia corporation, and THE DAILY
CALLER NEWS FOUNDATION,
C.A. No. N20A-07-001 MMJ
Petitioners Below-
Appellants, Appeal from Attorney General
Opinion No. 20-IB19 and
V. Opinion No. 20-IB20
DELAWARE DEPARTMENT OF
JUSTICE and UNIVERSITY OF
DELAWARE,
Respondents Below-
Appellees.
Nee Nee Nee” ee” Ne’ ee” ee ee” ee Ne Ne es Ne Ne
Submitted: October 9, 2020
Decided: January 4, 2021
On Appeal from Attorney General Opinions 20-IB19 and 20-IB20
AFFIRMED
OPINION
Theodore A. Kittila, Esq., William E. Green, Jr., Esq., Halloran Farkas + Kittila
LLP, Wilmington, Delaware, Attorneys for Petitioners Below- Appellants.
William E. Manning, Esq., James D. Taylor, Jr., Esq., Saul Ewing Arnstein & Lehr
LLP, Wilmington, Delaware, Attorneys for Respondent Below- Appellee University
of Delaware.
JOHNSTON, J.
PROCEDURAL AND FACTUAL CONTEXT
Judicial Watch, Incorporated (“Judicial Watch”) and The Daily Caller News
Foundation (“DCNF”) (together, “Appellants”) appeal two decisions issued by the
Attorney General of the State of Delaware! (the “Opinions”). Appellants seek a
number of documents donated to the University of Delaware (the “University”) by
then-Senator Joseph Biden.” The Joseph R. Biden, Jr., Senatorial Papers (the
“Papers”) include “[m]ore than 1,850 boxes of archival records from the Vice
President’s Senate Career.”? The Papers will be available to the public after “they
have been properly processed and archived.”*
Judicial Watch’s FOIA Request
On April 30, 2020, Judicial Watch submitted a request under Delaware’s
Freedom of Information Act (“FOIA”) to the University for the following
documents:
A. Any and all records regarding, concerning, or related to the
proposed release of the records pertaining to former Vice President Joe
Biden's tenure as a Senator that have been housed at the University of
Delaware Library since 2012. This request includes, but is not limited
' Del. Op. Att’y Gen. 20-IB19, 2020 WL 4013788, at *1; Del. Op. Att’y Gen. 20-IB20, 2020 WL
4013789, at *1.
* For complete clarity, all references to “then-senator Biden,” “Vice President Biden,” “former
Vice President Joe Biden,” or “President-elect Biden” refer to Joseph R. Biden, Jr.
3 The University of Delaware, The Joseph R. Biden, Jr., Senatorial Papers,
https://library.udel.edu/special/joseph-r-biden-jr-senatorial-papers/ (last visited January 1, 2020).
4 Td.
> 29 Del. C. §§ 10001-10007.
to, any and all related records of communication between any official,
employee, or representative of the University of Delaware and any
other individual or entity, as well as any notes, agenda, minutes, or
similar records created in preparation for, during, and/or pursuant to
any meeting of the Board of Trustees during which the proposed release
of the records was discussed.
B. Any and all records of communication between any trustee,
official, employee or representative of the University of Delaware and
former Vice President Biden, any representative of his presidential
campaign, or any other individual acting on his behalf between January
1, 2018 and the present.®
The University denied Judicial Watch’s request via email on May 20, 2020.
In support of its denial, the University stated that “[t]here have been no
expenditures of public funds regarding or related to the Joseph R. Biden, Jr.
Senatorial papers.”’ The University additionally stated that “[t]he Joseph R. Biden,
Jr. senatorial papers were never addressed in a meeting of the full Board of
Trustees. Therefore the University has no public records responsive to your
request.”® Subsequently, on May 26, 2020, Judicial Watch filed a petition with the
Office of the Attorney General pursuant to 29 Del. C. § 10005(b).? The petition
sought a determination of whether the University’s denial of Judicial Watch’s
request constituted a violation of FOIA."
° Appellants’ Opening Brief in Support of their Appeal from Attorney General Opinions 20-IB19
and 20-IB20 (“OB”), at 4.
’ Certified Record at 000006.
8 Td.
° OB at 5.
10 Td.
On June 25, 2020, the Attorney General issued an opinion concluding that
the University had not violated FOIA.'! The Attorney General noted that, except
in two specific instances, FOIA does not apply to the University. In the first
instance, the University’s Board of Trustees is considered a “public body” and
“each meeting of the full Board of Trustees. . shall be a ‘meeting.’”!? Thus,
information about matters discussed by the full Board of Trustees in a “meeting”
may be requested under FOIA. In the second instance, “university documents
relating to the expenditure of public funds” may be requested under FOIA as
“public records.”'? The Attorney General found that the documents requested by
Judicial Watch did not fall under either exception because there was nothing in the
record to suggest that the requested documents related to the expenditure of public
funds."
The Daily Caller News Foundation’s FOIA Request
On April 30, 2020, DCNF submitted a FOIA request to the University for
the following documents:
A. All agreements, including modifications, revisions, or
updates, concerning the storage of more than 1,850 boxes of archival
records and 415 gigabytes of electronic records from Joe Biden's senate
career from 1973 through 2009.
11 9020 WL 4013788, at *1.
12.99 Del. C. § 10002(i).
13 Tq.
4 9020 WL 4013788, at *1.
B. Correspondence including but not limited to email, phone and
written communications between staff of the University of Delaware
Library and Joe Biden or members of Joe Biden's senatorial staff, Joe
Biden’s vice-presidential staff or Joe Biden’s political campaign staff,
or for anyone representing any of those entities between 2010 to the
date of this request about Joe Biden’s senate records.
C. Any logs or sign-in sheets recording any individuals who
have visited the special-collections department where records from Joe
Biden’s senate career are stored between 2010 to the date of this
request.
D. All records from Joe Biden's Senate career that have been
submitted to the University of Delaware Library.'>
On May 20, 2020, the University denied DCNF’s request, primarily because
it did not relate to the expenditure of public funds.’ On May 29, 2020, DCNF
filed a petition with the Office of the Attorney General pursuant to 29 Del. C. §
10005(b).'’ The petition sought a determination of whether the University’s denial
of DCNF’s request constituted a violation of FOIA.'®
On July 1, 2020, the Attorney General issued an opinion concluding that the
University had not acted in violation of FOIA.’ The Attorney General found that:
(1) DCEN’s first two requests did not seek documents related to the expenditure of
public funds; (2) the University’s library patron log is exempt from FOIA; and (3)
'5 OB at 6-7.
16 Td. at 7.
'7 Tq.
18 Tq.
'9 2020 WL 4013789, at *1.
DCNF’s attempt to access “all records from Joe Biden’s Senate career” is
inappropriate.?” The Attorney General additionally stated that “[a]ttempting to
access library records through the FOIA process is an inappropriate use of FOIA
that does not advance FOIA's objective of furthering the accountability of
government to its citizens.”?!
Appellants Challenge the Attorney General’s Opinions
Appellants have combined their individual FOIA requests to file one
consolidated appeal of the Opinions.” On July 2, 2020, Appellants filed a Notice
of Appeal seeking reversal of the Opinions.”? On July 22, 2020, the Delaware
Department of Justice (“DDOJ”) filed the Certification of Record.*4 On July 30,
2020, the New Castle County Sheriff filed a Writ Non Est Inventus stating that
there had been several unsuccessful attempts to serve the University.7> On July 31,
2020, the University’s general counsel accepted service.”© On August 11, 2020,
20 Td.
21 Td.
22 The DDOJ was included as a defendant in this appeal. On July 15, 2020, the DDOJ informed
the Court that it would not participate in this appeal because “the ‘adverse’ interests in this
matter are between [] Appellant[s] and the University of Delaware.” Trans. ID 65772279.
3 OB at 1.
4 Td. at 2.
25 Id.26 Td.
Appellants filed a letter with the Court, countersigned by the University, which
acknowledged that service was accepted.”’
On August 28, 2020, Appellants filed their Opening Brief.28 On September
28, 2020, the University filed its Answering Brief. On October 8, 2020,
Appellants filed their Reply Brief.
STANDARD OF REVIEW
Decisions made by the Attorney General concerning FOJA requests may be
appealed to the Superior Court “on the record.”*? As this appeal concerns issues of
statutory interpretation, the parties’ arguments are reviewed de novo.*°
ANALYSIS
Appellants’ Contentions
Appellants argue that the Opinions should be reversed for five reasons.
First, the Attorney General impermissibly shifted the burden of proof to
Appellants. Second, the University failed to prove that no public funds are utilized
for the Papers. Third, the Opinions erroneously concluded that the documents
27 Td.
*8 During the briefing period, the case was transferred from the Honorable Charles E. Butler to
the Honorable Mary M. Johnston.
29 29 Del. C. § 10005(b).
3° See Delaware Dept. of Natural Resources & Environmental Control v. Sussex County, 34 A.3d
1087, 1090 (Del. 2011); Flowers v. Office of the Governor, et. al., 167 A.3d 530, 541 (Del.
Super. 2017).
requested by Appellants are not “public records,” and thus not subject to FOIA.
Fourth, the requested visitor log-in sheets are not covered by a library exception.
Fifth, the University denied Appellants their legal right to inspect covered
documents by failing to adequately search the Papers for responsive documents
before denying Appellants’ requests.
In addition to reversing the Opinions, Appellants ask the Court to: (1)
require the University to search for responsive documents; (2) require the
University to promptly grant Appellants access to any responsive documents; and
(3) award them their attorneys’ costs and fees.”!
The University's Contentions
The University argues that the Opinions should be affirmed. The University
posits that Appellants’ reading of FOJA is overly broad and would essentially
require any entity that receives any public funds to produce all documents in their
possession. Further, the University contends that the Attorney General, and this
Court, may rely on a statement from the University’s General Counsel that no
public funds are used for the Papers. The University next argues that it was not
required by FOJA to review every document included in the Papers prior to
3! Appellants’ last request does not necessitate a lengthy discussion. For the reasons set forth in
this opinion, Appellants are not successful plaintiffs and thus are not entitled to attorney’s costs
and fees under 29 Del. C. § 10005(d).
denying Appellants’ requests. Finally, the University maintains that the requested
visitor log-in sheets are covered by FOIA’s library record exemption.
Appellants’ Requests are Not Subject to FOIA
The purpose of FOIA is to “further the accountability of government to the
citizens of [Delaware].”*? FOIA’s Declaration of Policy states the policy
considerations behind this legislation.
It is vital in a democratic society that public business be performed in
an open and public manner so that our citizens shall have the
opportunity to observe the performance of public officials and to
monitor the decisions that are made by such officials in formulating and
executing public policy; and further, it is vital that citizens have easy
access to public records in order that the society remain free and
democratic.*3
While FOIA is meant to cover a wide array of information, it does not
provide unlimited access to every document that is of interest to the public. This is
especially true with regard to documents belonging to the University. When
enacting FOJA, the General Assembly specifically addressed how FOIA would
apply to the University.** As the Attorney General stated in the Opinions, FOIA
only covers: (1) matters discussed in meetings by the full Board of Trustees; and
(2) university documents relating to the expenditure of public funds.*°
32 29 Del. C. § 10001.
33 Td.
34 Td. at § 10002(i).
35 Id.
The Papers were Never Discussed Before the Full Board
In response to Appellants’ requests, the University stated that the Papers had
not been discussed before the full Board of Trustees. Appellants do not challenge
this assertion, but rather argue that “[t]he University should not be permitted to
circumvent FOIA by hiding its decision-making with respect to matters of public
interest behind executive sessions or delegation to a subset of the Board of
Trustees.”°° Regardless of whether FOIA provides a potential loophole, it is clear
that the General Assembly took care to define exactly how the legislation would
apply to the University. Applying FOIA as clearly written, Appellants’ request for
information from any meeting where the Board discussed the Papers may be
properly denied because the matter was never discussed before the full Board.
The Papers Do Not “Relate to the Expenditure of Public Funds”
The second exception is the main point of contention in the briefs.
Appellants argue that every document contained in the Papers is covered by FOIA
because the University receives some public funding and it can be inferred that at
least a portion of that public funding is used to house, maintain, or otherwise
support the Papers. The University argues that this interpretation of FOIA is
impermissibly broad.
36 OB at 14.
10
FOIA does not define what it means for a document to “relate to the
expenditure of public funds.” However, it does include specific examples of
covered documents including: requests for proposals; requests for quotes; or other
documents “soliciting competitive bids for any contract, agreement, capital
improvement, capital acquisition or other expenditure.”*’ In light of these
examples, the Court finds that documents which “relate to the expenditure of
public funds” are those that discuss or show how the University itself spends
public funds. Therefore, none of the documents requested by Appellants fall under
FOIA.38
The University has Adequately Shown that the Papers are Not Supported by
Public Funds
In an action alleging a FOIA violation, “the burden of proof shall be on the
custodian of records to justify the denial of access to records.’”*’ Appellants
dedicate a great deal of their opening brief to arguing that the “uncorroborated
representation [made by the University’s General Counsel] that no public funds are
37 29 Del. C. § 10002.
38 The Court relies on the statement from the University’s General Counsel that none of the
requested documents are responsive. The only document that possibly could “relate to the
expenditure of public funds” is the Gift Agreement. If upon further review within 30 days of
the date of this Opinion, the University finds that the Gift Agreement discusses the University
using public funds to support the Papers, the University must immediately notify the Court so
that this opinion can be amended.
3° 29 Del. C. § 10005(c).
11
used to support the [] Papers” is insufficient to meet the University’s burden of
proof.”
Every lawyer licensed in Delaware is bound by a duty of candor.*! “Candor
requires both the expression of the truth and the refusal to mislead others in speech
and demeanor.”“* A Delaware attorney who makes a false statement in the course
of legal representation is subject to discipline by the Delaware Supreme Court.”
In light of this duty, statements made by the University’s General Counsel may be
given proper weight. Further, Appellants have provided nothing other than
unsupported speculation in opposition to University Counsel’s representation. The
Court also notes that FOJA only requires a public body to provide its reasons for
denying a request; there is no requirement to provide supporting proof.“
Therefore, the Court finds that the University met its burden to justify denial of
access to the Papers.
The University was Not Required Review Every Document Included in the
Papers
Appellants argue that the University’s “categorical” determination “that no
responsive public records exist based on the unsupported assertion that public
40 OB at 9-13.
“I Del. Principles Professionalism for Lawyers A(1).
2 Td.
43 DLRPC 3.3.
4 29 Del. C. § 10003(h)(2).
12
funds are not expended to support the Senatorial Papers. . .denied Appellants their
legal right to inspect records under FOIA.” Appellants appear to believe that it
would have been simple for the University to thoroughly examine the Papers
before responding to Appellants’ requests. The Papers include “more than 1,850
archival records” in addition to “extensive electronic records and media.”*° The
University has been meticulously cataloging all of this information for years. It
would be unduly burdensome and unreasonable as a practical matter to require that
the University speed up its process so that it could inspect each and every
document before denying Appellants’ requests.
Further, the decision to grant or deny Appellants’ requests did not require
knowledge of any information contained in the Papers. This decision turned on
whether or not the Papers related to the University’s expenditure of public funds.
As President-elect Biden is not, and never was, an employee of the University,
there is no reason to believe that any information contained in the Papers would
relate to the University’s financial expenditures. Additionally, the question of
whether the University expends public funds to maintain the Papers is answered by
examining the University’s spending, which likely would not be accounted for in
45 OB at 18-19.
46 https://library.udel.edu/special/joseph-r-biden-jr-senatorial-papers/.
13
the Papers themselves. Therefore, the University did not err by failing to examine
the Papers before denying Appellants’ requests.
The University was Not Required to Produce Log-in Sheets
Appellants’ final argument is that the University improperly withheld “any
logs or sign-in sheets recording any individuals who have visited the special-
collections department where records from Joe Biden’s senate career are stored.”*’
However, under 29 Del. C. § 10002(1)(12), “any records of a public library which
contain the identity of a user and the books, documents, films, recordings or other
property of the library which a patron has used” are specifically exempted from
“public records” and thus are not subject to FOIA.
The Papers are housed in the University’s Morris Library, which is a public
library. Once properly archived, the Papers will be available to the entire public.
The two-pronged application of 29 Del. C. § 10002(1)(12) is straightforward. First,
the log-in sheets requested by Appellants are “records of a public library which
contain the identity of a user.” As for the second prong—the identity of the
documents accessed—Appellants argue that “the request for visitor log does not
seek the specific documents within the Senatorial Papers a visitor has accessed.”
This argument is without merit. The Papers belong to the library in the same way a
47 OB at 7, 16-17.
14
collection of books would. Even if the requested log-in sheets did not identify the
exact document a visitor accessed, they would still identify the “documents...of
the library which a patron has used.” As the requested log-in sheets are not subject
to FOJA, the University did not err by failing to give Appellants access to them.
CONCLUSION
The Court finds that the University’s denial of Appellants’ requests does not
violate FOIA. The requested information is not subject to FOIA. The Papers were
never discussed during a meeting of the University’s Board of Trustees and the
Papers do not relate to the expenditure of public funds. The Attorney General, and
this Court, may rely on the statement of University Counsel that no public funds
are used to maintain the Papers. The University was not required to inspect the
Papers or provide log-in sheets for persons who have accessed the Papers.
After a careful de novo review, this appeal is HEREBY DENIED and the
Opinions are HEREBY AFFIRMED.
IT IS SO ORDERED.
e
The Morale Mary M. Johnston
15