IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUDICIAL WATCH., a District of )
Columbia corporation, and THE )
DAILY CALLER NEWS )
FOUNDATION, )
) C.A. No. N20A-07-001 MMJ
Petitioners Below, )
Appellants )
)
v. )
)
UNIVERSITY OF DELAWARE, )
)
Respondent Below, )
Appellee. )
Submitted: March 7, 2022
Decided: June 7, 2022
On Remand from the December 6, 2021 Opinion
of the Supreme Court of the State of Delaware
MEMORANDUM OPINION
Theodore A. Kittila, Esquire, William E. Green, Jr., Esquire, HALLORAN FARKAS
+ KITTILA LLP, Wilmington, Delaware; for Appellants Judicial Watch, Inc. and
The Daily Caller News Foundation.
William E. Manning, Esquire, James D. Taylor, Jr., Esquire, Marisa R. DeFeo,
Esquire, SAUL EWING ARNSTEIN & LEHR LLP, Wilmington, Delaware; for
Appellee University of Delaware.
JOHNSTON, J.
Supreme Court Decision
Judicial Watch, Inc. and The Daily Caller News Foundation (collectively
“Appellants”) submitted requests under the Delaware Freedom of Information Act
(“FOIA”), 29 Del. C. §§ 19991-10007, to access the Biden Senatorial Papers donated
to the University of Delaware. The University denied the requests. Appellants filed
petitions with the Office of the Attorney General of the State of Delaware challenging
the denial. The Attorney General’s Office issued opinions concluding that the records
requested by Appellants are not subject to FOIA. Appellants appealed these opinions
to the Superior Court. This Court affirmed the opinions.1 Appellants appealed the
Superior Court’s ruling to the Supreme Court.
By Opinion dated December 6, 2021, the Delaware Supreme Court made the
following findings. 2
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. Because the 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
1
Judicial Watch, Inc. v. Del. Dep’t. of Justice, 2021 WL 22550 (Del. Super.).
2
Judicial Watch, Inc v. University of Delaware, 267 A.3d 996 (Del. 2021).
2
additional evidence or submissions as it deems necessary
and appropriate.
⁎⁎⁎
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.
⁎⁎⁎
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.
3
ANALYSIS ON REMAND
The University of Delaware filed an Opening Brief on Remand, accompanied
by the Affidavit of Jennifer M. Becnel-Guzzo, Esq., University FOIA Coordinator.
Appellant filed an Answering Brief, challenging the sufficiency of the Affidavit in
several respects. The University did not request permission to file a reply, or
otherwise respond, to the Answering Brief.
The Affidavit begins by describing the procedures the affiant generally follows
in response to a FOIA request. Specifically with regard to requests involving Joseph
R. Biden, Jr., the Affidavit states:
5. In recent years, I have responded to numerous FOIA
requests having to do with the University’s relationship to
Joseph R. Biden, Jr. Thus, on several occasions I have
inquired of University personnel, including the
University’s budget office and the University’s library,
whether State funds have been spent on a variety of
matters or undertakings related to Mr. Biden. In no case
have I found that State funds were spent by the University
on any such matter or undertaking.
6. In addition, I have inquired whether the Biden Senate
Papers were ever discussed at meetings of the full Board
of Trustees and have confirmed no such discussions
occurred.
7. After receiving FOIA requests for the Biden Senate
Papers, including the FOIA requests at the center of this
case, I inquired whether the University paid any
consideration, State funded or otherwise, to Mr. Biden for
the Senate Papers. It did not.
4
8. I also inquired whether the salaries of any University
personnel involved in the custody and curation of the
Senate Papers are paid with State funds. They are not.
9. I reviewed the gift agreement between the University and
Mr. Biden relating to the Senate Papers to determine if
State funds were mentioned. They are not. I have re-
confirmed this finding to the Court at its request. See D.I.
No. 18, Jan. 6, 2021 Ltr. To Judge Johnston.
10. Finally, I inquired whether state funds have been spent on
the University’s email system over which email
communications between University personnel and any
representative of Mr. Biden might have been exchanged.
They were not.
11. Based on the foregoing, I determined that no State funds
were spent by the University in any way that related to Mr.
Biden or the Senate Papers. This is the same
determination I reported to both the Department of Justice
and this Court earlier in this case. See D.I. 1, Certified
Record at 000017-18; 21; 31; 38; 47; 49-50. For these
reasons, I believe the University appropriately denied the
Petitioners’ FOIA Requests.
The Affidavit states that inquiries were made, but does not say when, to whom,
or what documents were reviewed (with the exception of the “gift agreement”).
The Supreme Court held: “Requiring facts submitted under oath, such as through
an affidavit, to justify the denial of records is consistent with [Section 10005(c)’s]
scheme.” The Supreme Court concluded 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 as through a
5
sworn affidavit....” The Court finds that the statement under oath requirement has been
met.
However, the remand mandates that the inquiry does not end with the
University’s filing of an Affidavit swearing to information previously provided. The
Supreme Court directed reconsideration of whether the University satisfied its burden
of proof.
Because the 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.
⁎⁎⁎
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.
6
The Supreme Court specifically did not “suggest that the University must search
the Biden Senatorial Papers for responsive documents [because the] Superior Court
held that the Biden Senatorial Papers are facially excluded from FOIA, and Appellants
have not appealed that ruling.”
The Court finds that the generalized statements in the Affidavit do not meet “the
burden to create a record from which the Superior Court can determine whether the
University performed an adequate search for responsive documents.” The University
of Delaware must articulate who (identified at least by position within the University)
provided the information: that no State funds were spent by the University; that no
salaries of any University personnel involved in the custody and curation of the papers
were paid with State funds; that no State funds were spent on the University’s email
system for communications between University personnel and Biden representatives;
when such inquiries were made; and what, if any, documents (other that the gift
agreement) were reviewed.
THEREFORE, Respondents are granted leave to submit additional
information, under oath, within 45 days of the date of this Memorandum Opinion.
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
7