Judicial Watch, Inc. University of Delaware

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JUDICIAL WATCH, INC., a District of §
Columbia corporation, and THE DAILY §
CALLER NEWS FOUNDATION, § No. 32, 2021
§
Petitioners Below, § Court Below – Superior Court
Appellants, § of the State of Delaware
§
v. § C.A. No. N20A-07-001
§
UNIVERSITY OF DELAWARE, §
§
Respondent Below, §
Appellee. §
Submitted: September 15, 2021
Decided: December 6, 2021
Before VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES,
Justices; and GLASSCOCK, Vice Chancellor,1 constituting the Court en banc.
Upon appeal from the Superior Court of the State of Delaware. AFFIRMED IN
PART, REVERSED AND REMANDED IN PART.
Theodore A. Kittila, Esquire, William E. Green, Jr., Esquire (argued), HALLORAN
FARKAS + KITTILA LLP, Wilmington, Delaware; for Appellants Judicial Watch,
Inc. and The Daily Caller News Foundation.
William E. Manning, Esquire (argued), James D. Taylor, Jr., Esquire, SAUL
EWING ARNSTEIN & LEHR LLP, Wilmington, Delaware; for Appellee University
of Delaware.
1
Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rule 2(a) and
4(a) to complete the quorum.
1
MONTGOMERY-REEVES, Justice:
In 2012, then-Vice President Joseph R. Biden, Jr. donated his Senatorial
papers (“Biden Senatorial Papers” or “Papers”) to the University of Delaware (the
“University”). The donation was made pursuant to a gift agreement (the
“Agreement”) that placed certain restrictions on the University’s ability to make the
Biden Senatorial Papers publicly available. In April 2020, Judicial Watch, Inc.
(“Judicial Watch”) and The Daily Caller News Foundation (“DCNF”) (collectively,
the “Appellants”) submitted requests under the Delaware Freedom of Information
Act (“FOIA”), 29 Del. C. §§ 10001-10007, to access the Papers and any records
relevant to or discussing the Papers.
The University denied both requests, stating that the Papers are not subject to
FOIA because the Papers do not meet the definition of “public records” and because
the full Board of Trustees never discussed the Papers. Appellants then filed separate
petitions with the Office of the Attorney General of the State of Delaware
challenging the University’s denial of their requests. The Deputy Attorney General
issued individual opinions to Judicial Watch and DCNF concluding that the
University had not violated FOIA because the records Appellants requested are not
subject to FOIA. Appellants then appealed to the Superior Court, which affirmed
the Deputy Attorney General’s opinions. Appellants have now appealed the
Superior Court’s ruling to this Court.
2
On appeal, Appellants argue that the Superior Court (1) improperly
interpreted the definition of “public records” in 29 Del. C. § 10002, (2) erroneously
shifted the burden of proof to Appellants to prove that the requested documents are
subject to FOIA, (3) incorrectly held that the University carried its burden to justify
its denial of records, (4) wrongly concluded that the University adequately searched
for records responsive to Appellants’ requests, and (5) abused its discretion in not
awarding attorneys’ fees and costs.
Having reviewed the briefs, the record on appeal, and after oral argument, the
Court concludes that the Superior Court properly interpreted the definition of “public
record” and did not erroneously shift the burden of proof to the Appellants.
However, we conclude that the University failed to carry its burden of justifying its
denial of the Appellants’ FOIA requests, based on the record before us. Finally, we
grant the Superior Court leave to reconsider the request for fees and costs, to the
extent it deems that necessary. Thus, we AFFIRM, in part, and REVERSE and
REMAND, in part.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
On June 6, 2012, then-Vice President Joseph R. Biden, Jr. donated the Biden
Senatorial Papers to the University of Delaware Library.2 The Papers, which
consisted of more than 1,850 boxes of archival records and 415 gigabytes of
2
App. to Opening Br. 55, 90 (hereafter, “A_”).
3
electronic records from President Biden’s 36-year career in the United States
Senate,3 were acquired by the University pursuant to a gift agreement that allows the
University to make the Papers publicly available after they have been properly
processed and archived.4
A. Judicial Watch and DCNF Submit FOIA Requests to the University
On April 30, 2020, Judicial Watch, a nonprofit organization that regularly
requests government records under federal and state “freedom of information” acts,5
submitted a request under 29 Del. C. § 10003 (the “Judicial Watch Request”) to the
University, seeking the following records:
1. 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 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.
2. Any and all records of communication between any
trustee, official, employee, or representative of the
University of Delaware and former Vice President Biden,
3
See A55 (stating that the Papers are from President Biden’s Senate career from 1973 to
2009).
4
Judicial Watch, Inc. v. Del. Dep’t of Just., 2021 WL 22550, at *1 (Del. Super. Ct. Jan. 4,
2021).
5
A8, 33.
4
any representative of his presidential campaign, or any
other individual acting on his behalf between January 1,
2018, and the present.6
In short, the Judicial Watch Request sought all records and communications from
the University about the proposed release of the Papers, as well as any
communications between the University and either President Biden or anyone acting
on his behalf (the “Communication Records”).
On April 30, 2020, DCNF, a nonprofit media organization,7 also submitted a
FOIA request to the University (the “DCNF Request”).8 The DCNF Request,
however, was much broader than the Judicial Watch Request, demanding not only
communications between the University and President Biden and his staff, but also
visitor logs from the department where the Papers are housed, the Papers themselves,
and the Agreement under which the Papers were donated to the University:
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.
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 anyone representing any of those entities between 2010
to the date of this request about Joe Biden’s senate records.
6
A33.
7
A8.
8
A55-56.
5
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.9
B. The University Denies Both Requests and Judicial Watch and DCNF File
Petitions with Delaware’s Attorney General
On May 20, 2020, the University’s FOIA Coordinator, Associate Vice
President, and Deputy General Counsel, Jennifer Becnel-Guzzo, denied both the
Judicial Watch Request and the DCNF Request.10 The University noted that only
University records that relate to the expenditure of public funds are considered
“public records” and subject to disclosure under Section 10002(l).11 The University
reasoned that because no public funds had been spent in relation to the Biden
Senatorial Papers, the Papers were not subject to disclosure under FOIA.12
Furthermore, in response to the Judicial Watch Request seeking Board of Trustee
meeting minutes (“Board Minutes”), the University noted that only the minutes from
full Board of Trustee meetings are subject to FOIA.13 Ms. Becnel-Guzzo asserted
9
A55.
10
A32, 57.
11
Id.
12A32.
13
Id.
6
that the University’s full Board of Trustees had never addressed the Papers and thus
had no records responsive to the Judicial Watch Request.14
On May 26, 2020, Judicial Watch filed a petition with the Office of the
Attorney General of the State of Delaware, claiming that the University’s denial of
its request violated FOIA.15 Judicial Watch challenged the University’s denial of its
FOIA request on two grounds. First, Judicial Watch claimed that because the Papers
are housed at the University’s library, and the library’s storage space and staff
members’ time constitute “things of value,” the University is expending public funds
on the Papers.16 As such, the requested records relate to the expenditure of public
funds and must be disclosed.17 Second, Judicial Watch argued that the University
failed to adequately search for the requested records.18
Similarly, on May 28, 2020, DCNF petitioned the Office of the Attorney
General of the State of Delaware to review the University’s denial of its request for
a potential FOIA violation.19 DCNF noted that because the State provided the
University with a $3.6 million contingency fund exclusively for personnel costs, the
14
Id.
15A28-29.
16
A29.
17
See id. (“Because the records sought pertain to an activity by the University that entails
the expenditure of public funds, . . . we believe that [the University] has failed to fulfill its
obligation to comply with [FOIA].”).
18
Id.
19A55-56.
7
salaries of two of the University’s library staff members working on the Papers were
possibly paid using public funds.20 Therefore, it argued, the requested records relate
to the expenditure of public funds and the University’s denial of its request possibly
violated FOIA.21
C. Delaware’s Office of the Attorney General Upholds the University’s
Denial of the Appellants’ Requests and the Superior Court Affirms the
Deputy Attorney General’s Opinions
On June 25, 2020, and July 1, 2020, the Office of the Attorney General of the
State of Delaware issued opinions in response to Judicial Watch’s and DCNF’s
petitions (collectively, the “Opinions”), concluding that the University had not
violated FOIA.22
On July 2, 2020, the Appellants filed a timely joint notice of appeal in the
Superior Court requesting, inter alia, an order that the University produce all public
records responsive to the Appellants’ FOIA requests.23 The Appellants argued that,
in accepting the University’s uncorroborated representations regarding the content
of the requested records, the Opinions improperly shifted the burden of proof to the
Appellants, that the Deputy Attorney General erroneously concluded that the Biden
20
Id.
21Id.
22A51, 81.
23
A7, 13-14.
8
Senatorial Papers are not subject to FOIA, and that the University did not conduct
adequate searches to discover whether any records are responsive.24
The Superior Court issued a thoughtful opinion on January 4, 2021, affirming
the Opinions.25 The court began its analysis by noting that, as it relates to the
University, “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.”26 The court then held that because the University stated that the Biden
Senatorial Papers were never discussed before the full Board of Trustees, the
University could properly deny the request for Board Minutes.27 The court next
interpreted the phrase “relating to the expenditure of public funds” to mean “those
[documents] that discuss or show how the University itself spends public funds.”28
Because the Papers were not likely to discuss how the University spends public
funds, the court held that they are not “public records” and thus not subject to
FOIA.29 In a footnote, however, the court noted that the only requested document
that could potentially relate to the expenditure of public funds is the Agreement and
asked the University to review it within 30 days and notify the court if the Agreement
24
A12.
25
Judicial Watch, 2021 WL 22550, at *6.
26
Id. at *4.
27
Id.
28Id.
29Id. at *4-5.
9
discussed the University using public funds in connection with the Papers. 30 The
University’s counsel responded to this footnote on January 6, 2021, representing to
the Superior Court that she reviewed the Agreement and that it does not discuss the
use of public funds in relation to the Papers.31
The court then turned to the Appellants’ argument that uncorroborated
statements by the University’s Deputy General Counsel regarding the use of public
funds to support the Papers are insufficient to meet the University’s burden of proof
under Section 10005(c).32 The court noted that FOIA only requires the University
to provide its reasons for denying a request—not supporting proof.33 The court
further noted that because all Delaware lawyers are bound by a duty of candor, the
representations by the University’s counsel should be given proper weight.34 The
court thus held that the University satisfied its burden of proof required by FOIA. 35
The court finally considered Appellants’ argument that the University’s
categorical determination that the Papers were not public records under FOIA did
not amount to an adequate search for responsive records.36 The court held that the
University was not required to examine the Papers before denying Appellants’
30
Id. at *4 n.38.
31
A157.
32
Judicial Watch, 2021 WL 22550, at *4-5.
33
Id. at *5.
34
Id.
35Id.
36Id.
10requests because it would be unduly burdensome and unreasonable to require the
University to speedily search voluminous records and because the University could
make a reasonable categorical conclusion that the Papers do not relate to the
University’s expenditure of public funds given that President Biden never worked
for the University and there is no reason to believe the Papers contain any
information about the University’s spending.37
II. STANDARD OF REVIEW
“Questions of law are reviewed de novo. Statutory interpretation is a question
of law. Accordingly, this Court does not defer to . . . the Superior Court’s
interpretation of the statute[] in question.”38 The Court also reviews the proper
allocation of the burden of proof de novo as that inquiry is also a question of law.39
The Superior Court’s award of attorneys’ fees, however, is reviewed for abuse of
discretion.40
III. ANALYSIS
On appeal, Appellants have narrowed the scope of the documents they seek
from the University.41 The Appellants do not appeal the Superior Court’s ruling that
37
Id.
38Del. Dep’t. of Nat. Res. & Env’t Control v. Sussex Cnty., 34 A.3d 1087, 1090 (Del. 2011).
39
State Farm Mut. Auto. Ins. Co. v. Spine Care Del., LLC, 238 A.3d 850, 857 (Del. 2020).
40
Gannett Co., Inc. v. Bd. of Managers of the Del. Crim. Just. Info. Sys., 840 A.2d 1232,
1240 (Del. 2003).
41
Opening Br. 26-29.
11
the Biden Senatorial Papers do not relate to the expenditure of public funds.42 As
such, we do not disturb that ruling. The Appellants also do not appeal the Superior
Court’s ruling that, because public library records are exempted from FOIA’s
definition of public records, the University was not required to disclose the sign-in
sheets for the special collections department where the Biden Senatorial Papers are
housed.43 Thus, that ruling also stands. Instead, Appellants ask this Court to reverse
only the Superior Court’s rulings regarding the Agreement, Communication
Records, and Board Minutes.44
In asserting that they are entitled to these documents, Appellants ask the Court
to decide five issues: (1) What is the meaning of “public record” and “meeting”
under Section 10002(l); (2) Did the Superior Court erroneously shift the burden to
Appellants to prove that the requested documents are subject to FOIA; (3) Did the
University carry its burden to justify the denial of access to records; (4) Did the
University conduct an adequate search for responsive records; and (5) Did the
Superior Court err by not awarding Appellants their legal fees and costs under 29
Del. C. § 10005(d).45
42
Id.; Judicial Watch, 2021 WL 22550, at *4.
43
Judicial Watch, 2021 WL 22550, at *5.
44
Opening Br. 26-29.
45
Id. at 2-3.
12
All five questions require this Court to analyze the statutory language in 29
Del. C. §§ 10002-10005. The principles of statutory interpretation under Delaware
law are clear. When interpreting a statute, the Court’s priority is to “determine and
give effect to legislative intent.”46 The starting point is the language of the statute.47
“The ‘most important consideration for a court in interpreting a statute is the
[language] the General Assembly used in writing [the statute].’” 48 “If the statute is
found to be clear and unambiguous, then the plain meaning of the statutory language
controls.”49 Statutory language is ambiguous when it is reasonably susceptible to
different conclusions or interpretations.50 When statutory language is ambiguous, it
should be “interpreted ‘in a way that will promote its apparent purpose and
harmonize it’ with the statutory scheme.”51
A. FOIA Framework
FOIA was enacted to ensure governmental accountability by providing
Delaware’s citizens access to open meetings and meeting records of governmental
or public bodies, as well as access to the public records of those entities.52 This law
46
Del. Bd. of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012).
47
Fuller v. State, 104 A.3d 817, 821 (Del. 2014).
48
Salzberg v. Sciabacucchi, 227 A.3d 102, 113 (Del. 2020) (quoting Boilermakers Loc.
154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 950 (Del. Ch. 2013)).
49
Ins. Comm’r of Del. v. Sun Life Assurance Co. of Can., 21 A.3d 15, 20 (Del. 2011) (citing
Dir. of Revenue v. CNA Holdings., Inc., 818 A.2d 953, 957 (Del. 2003)).
50
Gillespie, 41 A.3d at 427.
51
Id. (quoting Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999)).
52
29 Del. C. §§ 10001-10003; accord Del. Solid Waste Auth. v. News-Journal Co., 480
A.2d 628, 631 (Del. 1984).
13
“acknowledge[s] that public entities, as instruments of government, should not have
the power to decide what is good for the public to know.”53 According to the
statute’s declaration of policy, FOIA aims to guarantee that Delaware citizens “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.”54
While FOIA aims to ensure that “society remain[s] free and democratic”
through “easy access to public records,” the statute’s assurance of openness and
accountability is limited.55 One such clearly delineated limit regards the University
of Delaware and Delaware State University.56 Section 10002(l) exempts the
activities of both universities from FOIA’s definition of “public body,” “public
record,” and “meeting.”57 That exemption, however, contains three exceptions: (1)
“the Board of Trustees of both universities shall be ‘public bodies’”; (2) “university
documents relating to the expenditure of public funds” are “public records”; and (3)
“each meeting of the full Board of Trustees of either institution shall be a
53
Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d at 631.
54
29 Del. C. § 10001.
55
Id.; see 29 Del. C. § 10002 (detailing numerous exemptions to the statute’s definition of
“public record”).
56
29 Del. C. § 10002(l).
57
Id.
14
‘meeting.’”58 Thus, the University is subject to FOIA in only two scenarios: (1)
when it is in possession of documents relating to the University’s expenditure of
public funds, and (2) when it holds meetings of the full Board of Trustees. The
parties dispute the scope and meaning of these two exceptions to the general rule
that University documents are not subject to FOIA disclosure.
1. A document is a “public record” when its content relates to the
expenditure of public funds
FOIA provides that University documents are only “public records” when
they “relat[e] to the expenditure of public funds.”59 Appellants interpret this
language in the following way: If the University uses any public funds in relation
to a document, that document involves the expenditure of public funds. Therefore,
according to Appellants, any records that discuss documents that involve the
expenditure of public funds necessarily “relat[e] to the expenditure of public funds”
and thus are “public records” subject to FOIA disclosure.60 As such, the Appellants
believe that the Papers, the Agreement, and the Communication Records “relat[e] to
the expenditure of public funds” if the University uses any public funds to finance
58
“‘Public body,’ ‘public record’ and ‘meeting’ shall not include activities of the
University of Delaware and Delaware State University, except that the Board of Trustees
of both universities shall be ‘public bodies,’ university documents relating to the
expenditure of public funds shall be ‘public records,’ and each meeting of the full Board
of Trustees of either institution shall be a ‘meeting.’” Id.
59
Id.
60
Opening Br. 26-28; 29 Del. C. § 10002(l).
15
the maintenance and storage of the Papers or even pay the salaries of those
University employees working to maintain or promote the Papers in any capacity.61
We disagree. As the Appellees argue, and the Superior Court held, a
document is a public record under Section 10002(l) when the content of those
documents relates to the expenditure of public funds. Turning first to the plain
language of Section 10002(l), the word “relate” means “to give an account of.” 62
Using that definition, the documents must give an account of the University’s
expenditure of public funds. Section 10002(l) also provides examples of documents
that relate to the expenditure of public funds, including requests for proposals and
quotes and solicitation of bids for contracts involving public funds.63 These
examples fit squarely into our interpretation of “relating to the expenditure of public
funds.” Moreover, the sentence’s structure is illuminating. Here, the subject of
“relating to” in the statute is the university document. As such, the document itself
must relate to the expenditure of public funds.
61
Opening Br. 26-28; A55.
62
Relate, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/relate (last
visited Nov. 12, 2021). The endeavor of statutory interpretation requires the Court to
“‘give the statutory words their commonly understood meanings.’” Salzberg, 227 A.3d
102, 113 (quoting Kofron v. Amoco Chems. Corp., 441 A.2d 226, 230 (Del. 1982)).
63
Section 10002(l) requires that the University label the following documents as relating
to the expenditure of public funds: “request for proposal, request for quotation, or other
such document soliciting competitive bids for any contract, agreement, capital
improvement, capital acquisition or other expenditure proposed to involve any amount or
percentage of public funds by or on behalf of the university . . . .” 29 Del. C. § 10002(l).
16
Second, even assuming, arguendo, that the statute’s language is ambiguous,
the principles of statutory interpretation support this Court’s interpretation.
Delaware statutory principles require statutory language to be interpreted in a way
that promotes the statute’s purpose.64 As discussed above, while the overall purpose
of FOIA is to give Delaware citizens access to public records, Section 10002(l) limits
the public’s access to the University’s documents.65 That purpose can be gleaned
from the definition of “public record” under Section 10002(o). Section 10002(o)’s
definition of public record is defined broadly as “information of any kind, owned,
made, used, retained, received, produced, composed, drafted or otherwise compiled
or collected, by any public body, relating in any way to public business, or in any
way of public interest, or in any way related to public purposes . . . .”66 If the General
Assembly wanted to subject the University to this broad definition of “public
record,” it would not have created a provision wholly excluding the University’s
activities and records from Section 10002(o)’s definition of “public record” with
only one exception for those documents relating to the expenditure of public funds.
Looked at another way, because fungible public dollars support, in some part, the
University, the Appellants’ reading of “relating to” would eviscerate the statutory
64
Gillespie, 41 A.3d at 427.
65
29 Del. C. §§ 10001, 10002(l). The University asserts in its brief that the limitation was
created to respect the University’s classification as a semi-private body that only receives
a fraction of its funding from the state. Answering Br. 12-15.
66
29 Del. C. § 10002(o).
17
distinction between true public entities and the University. The purpose of Section
10002(l) is to limit the scope to which the University is subject to FOIA. To employ
Appellants’ reading would be absurd, undercutting the scheme of the statute.
Thus, we affirm the Superior Court’s holding that a document relates to the
expenditure of public funds, and thus is a “public record,” when the content of that
document relates to the expenditure of public funds.
2. The University’s board of trustee meeting minutes and agenda are
publicly available
Section 10002(l) of FOIA provides that “each meeting of the full Board of
Trustees of [the University] shall be a ‘meeting’ [as defined and used by the
statute].”67 This language is unambiguous and plainly means that meetings of the
University’s Board of Trustees are not subject to FOIA unless the meeting is of the
full Board of Trustees. Under FOIA, public bodies must make the meetings, as well
as the minutes and agendas from these meetings, publicly available.68
Appellants do not seriously dispute this meaning. Instead, they note that the
University alleged that it had no records responsive to their request because the full
Board of Trustees had not discussed the Papers; this, they contend, may be because
the University sought to avoid disclosure by discussing the Papers in executive
67
Id. § 10002(l) (emphasis added).
68
Id. § 10004.
18
sessions or through a subset of the Board of Trustees.69 Accordingly, they make a
public-policy argument that requests disclosure of documents (assuming any exist)
from such sessions of the Board. The problem for Appellants is that FOIA
anticipates and permits the use of executive sessions in a way that ensures that the
use of such sessions is publicly disclosed. Under 29 Del. C. § 10004(c), a public
body can only hold a closed executive session when a majority of members at an
open meeting vote to hold the session.70 And the result of the vote must be recorded
in publicly available minutes.71 Section 10004(c) also requires the purpose of the
closed executive session to be set forth in the meeting’s agenda.72 Furthermore,
Section 10004(f) requires public bodies to maintain minutes of executive sessions
and make those minutes publicly available.73
69
A32; Opening Br. 27.
70
“A public body may hold an executive session closed to the public upon affirmative vote
of a majority of members present at a meeting of the public body. The vote on the question
of holding an executive session shall take place at a meeting of the public body which shall
be open to the public, and the results of the vote shall be made public and shall be recorded
in the minutes. The purpose of such executive sessions shall be set forth in the agenda
. . . .”
71
29 Del. C. § 10004(c).
72
Id.
73
“Each public body shall maintain minutes of all meetings, including executive sessions,
conducted pursuant to this section, and shall make such minutes available for public
inspection and copying as a public record.” 29 Del. C. § 10004(f). Section 10004(b)
presents nine situations in which a public body may call for a closed executive session,
including “discussion of the content of documents, excluded from the definition of ‘public
record’ in § 10002 of this title where such discussion may disclose the contents of such
documents.” If the public body holds a closed executive session for one of these purposes,
that purpose must be stated in the meeting minutes. It is only for one of these nine stated
purposes that a public body can withhold the minutes of its executive sessions and only “so
19
Therefore, if the University held a closed executive session to discuss the
Papers, that must be disclosed in publicly available meeting minutes. Moreover,
assuming for argument’s sake that the University’s Board of Trustees had elected to
discuss the Papers in an executive session, Section 10004(c) would require the
University to publicly justify that decision.74
In other words, the statute explicitly makes only a meeting of the full Board
of Trustees a “meeting.” Moreover, the public Board of Trustees meeting minutes
and agendas, available to the Appellants, would disclose any use of executive
sessions regarding the Papers.
B. The Superior Court Did Not Improperly Shift the Burden of Proof to the
Appellants in Violation of 29 Del. C. § 10005(c)
The second issue on appeal is whether the Superior Court improperly shifted
the burden of proof to the Appellants in violation of 29 Del. C. § 10005(c). The
Appellants claim that the Superior Court erred in “failing to properly ascribe the
burden of proof to the University, and thereby improperly placed it on [them].”75
The burden of proof for an enforcement action alleging a FOIA violation is
allocated in the statute. Under 29 Del. C. § 10005(c), “[i]n any action brought under
this section, the burden of proof shall be on the custodian of records to justify the
long as public disclosure would defeat the lawful purpose for the executive session.” 29
Del. C. § 10004(b).
74
29 Del. C. § 10005(c).
75
Opening Br. 14-17.
20
denial of access to records . . . .” Thus, the statute unambiguously places the burden
of proof on the public body subject to a FOIA request. As applied to the instant case,
the statute requires the University to justify its denial of the requests.
Appellants argue that the Superior Court erroneously shifted the burden of
proof to them when it stated, “Appellants have provided nothing other than
unsupported speculation in opposition to University Counsel’s representation.”76
But an examination of the court’s entire analysis reveals that the court did not
erroneously place the burden of proof on Appellants. In fact, the court framed the
larger issue of whether the University violated FOIA by analyzing whether “[t]he
University has [a]dequately shown that the Papers are [n]ot [subject to FOIA].”77 In
beginning its discussion on that issue, the court quoted the burden of proof as
allocated by Section 10005(c), noting that the custodian of record bears the burden.78
The court then properly placed that burden on the University by examining whether
representations by the University’s counsel were sufficient to meet the burden.79 The
court then concluded its analysis on this issue by finding that “the University met its
burden to justify denial of access to the Papers.”80 At no point in the court’s
discussion were the Appellants assigned the burden of proving that the University
76
Judicial Watch, 2021 WL 22550, at *5.
77
Id at *4-5.
78
Id. at *4.
79
Id. at *5.
80
Id. (emphasis added).
21
unjustifiably denied them access to the requested records. Thus, this Court holds
that the Superior Court did not improperly place the burden of proof on the
Appellants.
C. The University Did Not Carry Its Burden of Proof Under 29 Del. C. §
10005(c)
The true crux of Appellants’ “burden of proof” argument is that the Superior
Court improperly held that the University met its burden of proof by accepting
unsworn representations from the University’s counsel regarding the use of public
funds to support the Papers.81 Stated differently, Appellants argue that the unsworn
representations from the University’s counsel are insufficient to provide the
justification for denying the requests under Section 10005(c). According to
Appellants, a public body can only satisfy the burden of proof by explaining, under
oath, its review process and the reasons for the denial.82 At a minimum, the
Appellants contend a public body must perform a diligent inquiry and provide an
affidavit that identifies the sources of information relied on and ties the facts asserted
to any claimed exceptions from FOIA.83
81
Opening Br. 14.
82
See id. (“Unsworn representations by counsel are generally not sufficient to establish
substantive facts in Delaware courts.”).
83
Oral Argument at 4:35-4:58 (Sept. 15, 2021),
https://livestream.com/accounts/5969852/events/9820231/videos/225896838/player.
22
The University disagrees and responds that a public body need only state its
reasons for a denial under Section 10005(c).84 According to the University, support
for its interpretation lies at the intersection of Sections 10003(h)(2) and 10005(c).
Section 10003(h)(2) requires the public body to “indicate the reasons” for a denial
of a FOIA request but notes that the public body “shall not be required to provide an
index, or any other compilation, as to each record or part of a record denied.”85 The
University argues that because Section 10003(h)(2) explicitly disclaims indices, the
court cannot then read Section 10005(c) as requiring indices or other forms of
proof.86 The University argues that the Superior Court’s holding in Flowers v. Office
of the Governor87 supports its interpretation of Section 10005(c).88
In Flowers, the plaintiff submitted a FOIA request to the Governor’s Office,
seeking non-privileged emails between the Governor’s Office and the former State
Treasurer.89 The Governor’s Office provided some emails but withheld other emails,
claiming they were exempt from FOIA’s definition of public record in Section
10002(o) under the privilege exemption.90 In response, the plaintiff requested that
84
Answering Br. 19.
85
29 Del. C. § 10003(h)(2).
86
Answering Br. 19.
87
167 A.3d 530 (Del. Super. Ct. 2017).
88
Answering Br. 19.
89
Flowers, 167 A.3d at 533.
90
Id. at 534.
23
the Governor’s Office provide a privilege log identifying each withheld email.91 The
Governor’s Office denied that request, asserting that Section 10003(h)(2) did not
require it to produce a privilege log.92
After the plaintiff petitioned the Chief Deputy Attorney General to investigate
a potential FOIA violation, the Governor’s Office responded to the petition with a
sworn affidavit, which stated that the emails were withheld under a number of FOIA
privileges, including the draft document, legislative, and executive privileges.93 The
Flowers affiant, an attorney, swore that she had personally reviewed the withheld
emails and that they fell under the previously stated exemptions.94
On appeal, the Superior Court confronted the question of whether the
Governor’s Office’s initial response, coupled with the affidavit, provided a sufficient
justification for partially denying the plaintiff’s records request under Section
10005(c).95 In particular, the court was tasked with determining whether Section
10003(h)(2)’s bar on indices had any bearing on the burden of proof articulated in
Section 10005(c).96 The court ruled that it did, relying on the doctrine in statutory
91
Id. at 534-35.
92
Id. at 535.
93
Id. at 535-36.
94
Id. at 536, 549.
95
Id. at 538.
96
See id. at 540 (“[T]he Governor’s Office argues the plain language of FOIA does not
require a public body to either outline the contours of any privilege asserted or provide a
general description of how the privileges were applied.”).
24
construction that statutes that are in pari materia must be construed together.97 The
court held that when “[h]armonizing § 10003(h)(2)’s bar on indices with § 10005’s
burden allocation, it is clear to the [c]ourt that the General Assembly contemplated
that a public body could meet its burden of proof without resorting to the production
of an index or compilation of each document withheld under each FOIA
exemption.”98
The University seizes upon the court’s reasoning, arguing that it shows that
Section 10005(c) cannot require the public body to “prove up the facts supporting
the stated reason as if it were in an adversarial adjudication.”99 The University’s
reading, however, mischaracterizes Flowers. Although the University is correct to
note that Flowers held that the bar on indices in Section 10003(h)(2) also bars indices
and other compilations of proof in Section 10005(c), it ignores the remainder of the
holding on the very same page of the opinion. The court found it equally clear “that
the General Assembly contemplated that the Chief Deputy would be able to fulfill
her responsibility to weigh the sufficiency of those reasons in determining whether
a FOIA violation had occurred, and, in turn, that this Court be able to review the
Chief Deputy’s decision without the considerable benefit of a[n] . . . [i]ndex.”100 As
97
Id. at 548-49.
98
Id. at 549.
99
Answering Br. 19.
100
Flowers, 167 A.3d at 549.
25
such, the court concluded “that an affidavit, along with a detailed written submission
that indicates the reasons for the denial may be sufficient to satisfy the public body’s
burden. Otherwise, the public body would be in the Catch-22 position of not being
required to produce an index, but not being able to meet its burden unless it produced
an index.”101 Thus, it appears to us that the holding in Flowers was cabined to
indices or similar compilations.102
The University’s attempt to stretch this holding beyond indices and other
compilations to include all forms of proof is unsupported. In fact, Flowers can be
read to implicitly reject the University’s contention. After all, the Flowers court
concluded that even an affidavit with a written submission detailing the public
body’s reasons for the FOIA denial may—not shall—be sufficient to satisfy the
public body’s burden of justifying the denial.103 This suggests that such evidence
also may not meet Section 10005(c)’s burden of proof requirement in certain
circumstances.104 Thus, even accepting the University’s argument that Section
10003(h)(2)’s bar on indices also bars indices under Section 10005(c), it does not
follow that a public body need not demonstrate any facts underlying the denial of a
FOIA request. Such a standard would be inimical to the statutory placement of the
101
Id.
102
Id.
103
Id.
104
Id.
26
burden of proof on the public body. To the contrary, Flowers suggests that at a
minimum an affidavit is necessary to meet the burden of proof.105
Requiring facts submitted under oath, such as through an affidavit, to justify
the denial of records is consistent with the statute’s scheme. Section 10005(c)
creates a statutory burden of proof that requires a public body to establish facts on
the record that justify its denial of a FOIA request.106 It is from those facts that the
Chief Deputy Attorney General and the courts must determine whether the public
body has met its burden. In other words, the Chief Deputy Attorney General and the
courts rely on facts established by the public body in order to resolve a FOIA dispute.
Here, the University asserted the following facts in an effort to meet its burden
of proof: the University does not expend public funds on the Biden Senatorial
Papers;107 and the Agreement does not discuss the use of public funds to support the
Biden Senatorial Papers.108 Thus, the University is asking this Court to determine
105
Id. The Dissent notes that “[t] his is not a case . . . like Flowers, where the existence of
requested documents is admitted but access is denied based on claimed exemptions under
the statute or the like. The sole basis asserted by the university for the denial of access to
the requested documents in this case is that it does not possess any ‘public records’ that fit
within the Appellants’ requests.” We agree that an assertion that no documents exist differs
from an assertion that the public entity need not provide responsive documents based on a
claimed exemption. But both statements rest on an assertion of fact by the public body that
the Court must rely on to resolve the action. And, when the public body is seeking to assert
a fact based on personal knowledge, that assertion must be made under oath in order to
establish some competent record.
106
29 Del. C. §10005(c).
107
A43.
108
A157. Although the Appellants continue to request the Board Minutes from the
University, and the University made a factual representation that the Papers were never
27
that it has met its burden of proof, fully resolving the dispute, based solely on these
factual representations. But the resolution of a legal action must rest on competent,
reliable evidence. And the Court has held that when an attorney seeks to establish
facts based on personal knowledge, those facts must be asserted under oath.109 A
statement made under oath, like a sworn affidavit, will ensure that the court’s
determination regarding the public body’s satisfaction of the burden of proof is based
on competent evidence.
The foregoing suggests that, unless it is clear on the face of the request that
the demanded records are not subject to FOIA, satisfaction of Section 10005(c)’s
burden of proof requires a statement made under oath. Such a reading of the
statutory text is also supported by the statute’s purpose. FOIA safeguards a
democratic society by ensuring the meetings and records of governmental entities
are available to the public.110 The General Assembly has said FOIA plays a
fundamental role in “society remain[ing] free and democratic” because FOIA
“further[s] the accountability of government to the citizens of this State.”111
discussed in a meeting with the full Board of Trustees, the Board Minutes must be made
available to the public, as discussed in Section III.A.2. The Appellants, therefore, do not
need to rely on representations by the University that the Board of Trustees did not discuss
the Biden Senatorial Papers. The Appellants may obtain any minutes they wish to review.
109
See Brokenbrough v. State, 522 A.2d 851, 858 (Del. 1987) (noting that attorneys at trial
are prohibited from asserting personal knowledge of facts at issue unless they are giving
witness testimony).
110
29 Del. C. §10001.
111
Id.
28
Therefore, if a public body is to deny citizens an opportunity to “observe the
performance of public officials and to monitor the decisions that are made by such
officials,” the public body must satisfy its burden of proof under FOIA in a manner
that tracks the seriousness of the statute’s purpose and policy.112 Statements made
under oath, such as through a sworn affidavit, accomplish that goal; they bear
earmarks of reliability and instill a measure of seriousness in the affiant by subjecting
the affiant to the risk of penalty of perjury.113
Finally, the requirement that the public body’s statement be made under oath
helps to address the statute’s inherent information imbalance. Courts have long
recognized the requesting party’s inherent disadvantage in the FOIA process.114
Particularly, courts have noted that “[t]h[e] lack of knowledge by the party seeing
[sic] disclosure seriously distorts the traditional adversary nature of our legal
system’s form of dispute resolution. Ordinarily, the facts relevant to a dispute are
112
Id.
113
Under Delaware law, “[a] person is guilty of perjury in the third degree when the person
swears falsely.” 11 Del. C. § 1221.
114
Vaughn v. Rosen, 484 F.2d 820, 824-25 (D.C. Cir. 1973). See also Guy v. Jud.
Nominating Comm’n, 659 A.2d 777, 781 (Del. Super. Ct. 1995) (“This allocation of the
burden of proof [in a FOIA case] . . . recognizes that the plaintiff asserting a freedom of
information claim has a disadvantage because only the public body holding the information
can speak confidently regarding the nature of the material and the circumstances of its
preparation and use which might support an exemption defense.”); McDonnell v. U.S., 4
F.3d 1227, 1241 (3rd Cir. 1993) (“The significance of agency affidavits in a FOIA case
cannot be underestimated. As, ordinarily, the agency alone possesses knowledge of the
precise content of documents withheld, the FOIA requester and the court both must rely
upon its representations for an understanding of the material sought to be protected.”
(quoting King v. Dep’t. of Just., 830 F.2d 210, 217-18 (D.C. Cir. 1987))).
29
more or less equally available to adverse parties. In a case arising under the FOIA
this is not true . . . .”115 In a FOIA proceeding, the public body has a unilateral
opportunity to characterize the requested documents, a characterization that
establishes whether the records are subject to FOIA. As a result, the Chief Deputy
Attorney General and the courts are forced to assess whether records are subject to
FOIA relying largely on the representations of the public body. Requiring sworn
statements, which subject the affiant or witness to the penalties for perjury, helps
offset the inherent disadvantage in the FOIA process.116
Thus, we hold that unless it is clear on the face of the request that the
demanded records are not subject to FOIA, to meet the burden of proof under Section
10005(c), a public body must state, under oath, the efforts taken to determine
whether there are responsive records and the results of those efforts.117 Because the
115
Vaughn, 484 F.2d at 824-25.
116
The Dissent notes that “[t]he university’s responses are made by a person who appears
to be a member of senior management.” Then, the Dissent states that the University’s
“responses do not seem . . . to raise any suspicions or lack credibility” and that it “see[s]
no reason to question the university’s responses in this case.” On this basis, the Dissent
“would find that the university’s responses in this case satisfied its burden of proof.” We
do not mean to cast aspersions on Ms. Becnel-Guzzo or the veracity of the University’s
representations. Nor do we suggest that the record, such as it is, implies any
misrepresentations of fact. Instead, we simply hold that any person seeking to establish
facts based on personal knowledge must do so under oath, regardless of that person’s title
or profession.
117
Interestingly, the Delaware Department of Justice’s Rules of Procedure for FOIA
Petitions and Determinations “encourage[s] [parties] to provide affidavits of individuals
with relevant knowledge with their submissions.” DEL. DEP’T. JUST., RULES OF
PROCEDURE FOR FOIA PETITIONS AND DETERMINATIONS, at 3 (2019),
https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/09/DDOJ-Rules-
30
University’s factual assertions to the Deputy Attorney General and the Superior
Court were not made under oath and do not describe the efforts taken to identify
responsive documents, they are not sufficient to meet FOIA’s burden of proof. On
remand, the Superior Court shall determine whether the University has satisfied its
burden of proof based on competent evidence in accordance with this ruling. The
Superior Court is granted leave to accept additional evidence or submissions as it
deems necessary and appropriate.
D. The Effect of This Opinion on the Superior Court’s Finding that the
University Performed an Adequate Search for Responsive Records in
Response to Certain of the Requests
The Appellants argue that the University made a categorical determination
that it had no responsive records, without properly searching the requested records
for responsive documents.118 This categorial determination, they contend, denied
them of their legal right to inspect records subject to FOIA.119 Because we have
already found that the unsworn assertions of fact below were insufficient to create a
record upon which the Superior Court could find that the University had satisfied its
burden of proof, requiring a remand, we need not address this argument further.
of-Procedure-for-FOIA-Petitions-and-Determinations.9.26.19.pdf. Further, in the instant
case, when the Delaware D.O.J. contacted the University about the Appellants’ petitions,
it suggested that “[t]o the extent that there are factual issues that the University addresses
in its response, the University may wish to provide us with an affidavit signed by someone
with knowledge of the information alleged.” A36, 66. The University, however, chose not
to do so. A43-44, 75-76.
118
Opening Br. 30-31.
119
Id.
31Nonetheless, in the interest of efficiency on remand, we make the following
observations.
Unless it is clear on the face of the request that the demanded records are not
subject to FOIA, the public body must search for responsive records. A description
of the search and the outcome of the search must be reflected through statements
made under oath, such as statements in an affidavit, in order for the public body to
satisfy its burden of proof. We note that it is not clear on the face of the requests for
the Agreement or Communication Records that they are not subject to FOIA, and
the University does not contend otherwise. On remand, the University bears the
burden to create a record from which the Superior Court can determine whether the
University performed an adequate search for responsive documents. Conversely,
where it is clear on the face of a request that the demanded records are not subject
to FOIA, the public body does not need to search the requested documents for
responsive records. Nothing herein should be read to suggest that the University
must search the Biden Senatorial Papers for responsive documents. The Superior
Court held that the Biden Senatorial Papers are facially excluded from FOIA, and
Appellants have not appealed that ruling.120
120
Judicial Watch, 2021 WL 22550, at *5.
32
E. The Superior Court Did Not Err by Not Awarding Attorneys’ Fees and
Costs to Appellants Under 29 Del. C. § 10005(d)
The Appellants assert that the Superior Court abused its discretion in denying
their attorneys’ fees and costs under 29 Del. C. § 10005(d),121 which states that “[t]he
court may award attorney fees and costs to a successful plaintiff of any action
brought under this section.”122 Specifically, the Appellants note that, as a result of
their appeal of the decision of the Attorney General, the Superior Court required the
University to review the Agreement for any content relating to the expenditure of
public funds. The Appellants argue that this action of the Superior Court
demonstrated that the University had failed initially to demonstrate that the
Agreement is not subject to FOIA.123 Having obtained the resulting further review
of the Agreement, Appellants argue that they should be found to be successful FOIA
plaintiffs and awarded attorneys’ fees and costs.124
Section 10005(d) only permits a court to award attorney fees and costs when
the FOIA plaintiff is successful. Appellants have not yet succeeded in their claims
that the University committed a FOIA violation. As such, Appellants are not yet
entitled to fees. Because the Superior Court’s opinion is reversed and remanded, in
121
Opening Br. 32.
122
29 Del. C. § 10005(d) (emphasis added).
123
Opening Br. 33.
124
Id.
33
part, the court is granted leave to reconsider on remand the fee request, to the extent
it deems necessary.
IV. CONCLUSION
For the reasons provided above, the Court AFFIRMS in part and REVERSES and
REMANDS in part the Superior Court’s judgment. On remand, the Superior Court shall
reconsider whether the University satisfied its burden of proof, consistent with this opinion.
The court may accept any additional evidence or submissions it deems necessary to
determine whether the University has violated FOIA in accordance with this ruling.
34
VAUGHN, Justice, dissenting:
I agree with the Majority’s decision that a document relates “to the
expenditure of public funds” when the content of the document relates to the
expenditure of public funds. An example would be a budgetary document. Other
examples, as mentioned by the Majority, would include requests for proposals and
quotes and solicitations of bids for contracts involving public funds. I also agree
with the Majority that the Superior Court did not shift the burden of proof from the
university to the Appellants.
I dissent because I believe that the Appellants’ claims in this case have no
merit and the case should be put to an end now. The university is subject to FOIA
for only two relatively narrow categories of documents. Since the university’s Board
of Trustees is defined as a “public body” under 29 Del. C. § 10002(l), the minutes
of its meetings are subject to public inspection and copying as public records under
§ 10004(f). The other category is “documents relating to the expenditure of public
funds.”1
The university’s responses to the Appellants’ FOIA requests indicate that the
Joseph R. Biden, Jr. senatorial papers were never discussed in a meeting of the Board
of Trustees, which is to say that none of the minutes of those meetings contain
anything responsive to the Appellants’ requests. But the Appellants do not have to
1
29 Del. C. § 10002(l).
35
take the university’s responses as the final word on this point. The Board’s agendas,
minutes, and meeting materials are publicly available on its website, for anyone,
including the Appellants, to see.
As to “documents relating to expenditure of public funds,” it is worth noting
initially that neither of the Appellants’ FOIA requests expressly ask for any such
documents. The question, then, is whether any documents related to the expenditure
of public funds possessed by the university fit into the categories of requested
documents by inference. The university’s responses, made by its associate vice
president and deputy general counsel, indicate that it has no such documents that are
responsive to Appellants’ requests. The university’s responses are made by a person
who appears to be a member of senior management. The responses do not seem to
me to raise any suspicions or lack credibility. This is not a case, for example, where
a public body denies having public records that one would logically think it does or
should have. This is not a case, for further example, like Flowers, where the
existence of requested documents is admitted but access is denied based on claimed
exemptions under the statute or the like. The sole basis asserted by the university
for the denial of access to the requested documents in this case is that it does not
possess any “public records” that fit within the Appellants’ requests. I see no reason
to question the university’s responses in this case.
36
FOIA does not require that the public body’s response to a FOIA request
follow any specific form. The Department of Justice concluded that the unsworn
representations of the university’s associate vice president and deputy general
counsel were sufficient to satisfy the university’s burden of proof under 29 Del. C.
§ 10005(c). The Superior Court also found that the university’s responses were
sufficient to satisfy its burden of proof. The Superior Court believed that the only
document that might possibly relate to the expenditure of public funds was the Gift
Agreement. It took an extra step of requiring the university to represent specifically
that the Gift Agreement did not contain anything concerning the university’s use of
public funds to support the Biden papers. I agree with the Department of Justice and
the Superior Court and would find that the university’s responses in this case
satisfied its burden of proof.
I would not use this case to make up an across-the-board rule that the public
body must file an affidavit as part of its response to a FOIA request whenever it is
unclear whether records requested are subject to FOIA. I would affirm the judgment
of the Superior Court.
37