Does Delaware FOIA cover University of Delaware records about Joe Biden's senatorial papers stored at the UD library?

Plain-English summary

Judicial Watch asked the University of Delaware (UD) for records about the proposed release of records pertaining to former Vice President Joe Biden's tenure as a U.S. Senator (papers housed at UD's library since 2012). It also asked for any communications between UD and Biden, his campaign, or his representatives between January 2018 and the request date.

UD denied. Section 10002(i) makes UD subject to FOIA in only two ways:

1. Full Board of Trustees meetings are "meetings" under FOIA.
2. University documents relating to the expenditure of public funds are "public records" under FOIA.

UD asserted (and supplied a representation that the AG accepted) that no public funds were spent on the Biden senatorial papers and that the full Board never addressed them. The communications with Biden and his campaign were also not "relating to the expenditure of public funds."

The AG accepted the representation and found no FOIA violation. Judicial Watch's two arguments, that archival storage and staff time are themselves "things of value" and thus public expenditures, and that subordinate UD bodies (besides the full Board) are subject to FOIA, both lost.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

UD's partial FOIA exemption is one of the more carefully negotiated arrangements in Delaware records law. UD is a private corporation that receives roughly 11% of its annual operating budget from state appropriations. Because it is not a fully public institution, the General Assembly limited FOIA's reach over UD to the slice of activity that involves state money or full-Board governance.

Section 10002(i) makes the University's full Board of Trustees a "public body" with FOIA-meeting obligations. It also defines as "public records" only those university documents "relating to the expenditure of public funds." Subsidiary committees, individual trustees acting alone, and routine university operations not tied to state funding are outside FOIA's coverage.

Section 10002(k) defines "public funds" as "those funds derived from the State or any political subdivision of the State." That excludes federal grant money flowing through to private research, donor money, tuition, and other non-state sources.

The Delaware AG has applied this carve-out several times. Op. 10-IB06 found that bid documents, contracts, payment records, and funding documents of Delaware State University were "public records." Op. 00-IB08 found that records "relating to the spending of state funds for those infrastructure improvements are 'public records.'" The pattern is that records about state-money flows are FOIA-able; records about non-state-money activity are not.

Common questions

Q: Why is the University of Delaware not fully subject to FOIA?
A: UD is a private corporation. State law grants it partial FOIA coverage, limited to full-Board meetings and records about public-fund expenditures. Other university activity is outside FOIA.

Q: What about Delaware State University?
A: DSU is similarly situated. Op. 10-IB06 confirmed that DSU bid documents, contracts, and payment records that involve public funds are public records.

Q: Doesn't archival storage and staff time count as a "thing of value"?
A: Judicial Watch made that argument; the AG rejected it. Section 10002(k) defines public funds as state-derived funds, not generalized "things of value." Archival storage funded by tuition or donor money does not become a state expenditure just because it has economic value.

Q: What if the senatorial papers were partly state-funded?
A: Then any records relating to that state-funded work would be public records subject to FOIA. The AG accepted UD's sworn representation that no public funds were spent.

Q: Can subordinate committees (not the full Board) be subject to FOIA?
A: Not under § 10002(i). Only the full Board of Trustees is treated as a "public body" for meetings purposes. Committee meetings of UD are outside FOIA.

Q: How does this rule shape what citizens can FOIA from UD?
A: You can usually get bid documents, vendor contracts, capital project records, and audit reports tied to state funding. You generally cannot get internal correspondence, donor records, faculty research records, student records, or library acquisition records that do not involve state funds.

Q: Were the Biden papers ever released to the public?
A: The papers' release timing has been a matter of public discussion, but that is governed by deed-of-gift terms between UD and Biden (or his designees), not by FOIA. FOIA is not the mechanism to compel release.

Q: What about FOIA at the federal level for Biden-related federal records?
A: Federal records about Biden's Senate tenure are governed by the federal FOIA (5 U.S.C. § 552) and Senate records-management rules. Those are separate inquiries.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions; UD coverage)

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB59 (Nov. 20, 2017), accepting public-body counsel's factual representations
- Del. Op. Att'y Gen. 10-IB06 (July 15, 2010), DSU public-funds records
- Del. Op. Att'y Gen. 00-IB08 (May 24, 2000), state-fund infrastructure records

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/06/25/20-ib19-6-25-2020-foia-opinion-letter-to-mr-sean-dunagan-re-foia-complaint-concerning-the-university-of-delaware/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/06/Attorney-General-Opinion-No.-20-IB19.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS
ATTORNEY GENERAL

NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 20-IB19
June 25, 2020

VIA EMAIL
Sean Dunagan
Judicial Watch, Inc.
[email protected]

RE: FOIA Petition Regarding the University of Delaware

Dear Mr. Dunagan:

We write in response to your correspondence alleging that the University of Delaware ("University") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. As set forth below, we conclude that the University has not violated FOIA with respect to your records request.

BACKGROUND

On April 30, 2020, you filed a FOIA request with 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, agendas, 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 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, any representative of his presidential campaign, or any other individual acting on his behalf between January 1, 2018 and the present.

By email dated May 20, 2020, the University responded to your request, stating that it had no responsive public records. The University clarified "[t]here have been no expenditures of public funds regarding or related to the Joseph R. Biden, Jr. senatorial papers." In addition, the University stated that the full Board of Trustees holds public meetings, but the senatorial papers were not addressed at a full Board meeting. The University also referred you to its website regarding access to the Biden Senatorial Papers. This Petition followed.

The Petition challenges the University's denial of access to the requested records on two grounds. First, you argue that because the senatorial papers are housed at the University's library, the archival storage space and staff members' time both constitute "things of value," and therefore, are expenditures of public funds. Second, you argue that the University failed to meet its obligation to search for the communications between the University and Vice President Biden and his representatives, contending that the Board of Trustees' lack of discussion is not relevant, as "[t]he Board of Trustees is not the only component of the University that is subject to the Freedom of Information Act."

On June 5, 2020, the University's counsel responded to the Petition ("Response"). The University argues that not all of its activities are subject to FOIA. Rather, its full Board of Trustees is considered a "public body" and must comply with the requirements for a "meeting" as defined by FOIA. Further, the University states its records are not considered "public records" unless those records relate to the expenditure of State dollars. Noting that the State provides approximately 11% of the University's yearly operating budget, the University contends there are many areas of the University not supported with public funds. Accordingly, the University argues that it appropriately denied your request, stating "[p]ublic funds are not used to support the Joseph R. Biden, Jr. Senatorial Papers." The University states the full Board of Trustees did not address this matter at a meeting; thus, no agendas or minutes are available to provide. Finally, the University states that the communications sought between the University and Vice President Biden or his presidential campaign are not considered public records, "as the University has not provided public funds to Vice President Biden or his presidential campaign."

DISCUSSION

FOIA does not apply to the University of Delaware with two specific exceptions. First, the Board of Trustees is a public body "and each meeting of the full Board of Trustees . . . [is] a 'meeting.'" Second, the "university documents relating to the expenditure of public funds [are] 'public records.'" Public funds are defined as "those funds derived from the State or any political subdivision of the State." To aid in identifying such records, FOIA also requires that "any university 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 shall indicate on the request for proposal or other such document that it relates to the expenditure of public funds."

Neither category of records requested here falls into these exceptions. Your request seeks the records and communications related to the proposed release of the senatorial papers and communications on any topic between the University and Vice President Biden or his campaign. FOIA deems those records relating to public expenditures subject to the public records requirements, not records on any topic. The University's counsel specifically states that no public funds were used for the senatorial papers and no public funds were paid to Vice President Biden or his campaign. As such, we find nothing in this factual record indicating the records you requested relate to the expenditure of public funds, and thus, these records are not considered public records subject to FOIA.

CONCLUSION

For the above reasons, this Office concludes that the University has not violated FOIA as alleged.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

APPROVED BY:
/s/ Aaron R. Goldstein
Aaron R. Goldstein
State Solicitor

cc: Jennifer M. Becnel-Guzzo, Associate Vice President and Deputy General Counsel