Are settlement agreements that the University of Delaware enters with employees or others available under FOIA, or can UDel withhold them because the settlements weren't paid from State money?
Official title
22-IB46 11/29/2022 FOIA Opinion Letter to Xerxes Wilson re: FOIA Complaint Concerning the University of Delaware
Plain-English summary
The University of Delaware sits in an unusual FOIA position. Delaware's FOIA covers most public bodies fully, but the General Assembly carved out UDel decades ago. Under 29 Del. C. § 10002(l), only two categories of UDel activity are subject to FOIA: meetings of the full Board of Trustees, and "university documents relating to the expenditure of public funds." Section 10002(m) defines "public funds" as "those funds derived from the State or any political subdivision of the State." The Delaware Supreme Court in Judicial Watch, Inc. v. University of Delaware, 267 A.3d 996 (Del. 2021), held that a UDel document is a "public record" only when its content actually relates to the expenditure of public funds.
On August 22, 2022, Xerxes Wilson of The News Journal filed a FOIA request for all settlement agreements between UDel and other parties from January 2019 to date. He offered to accept a summary list (parties, date, cost, what prompted the settlement) in lieu of the full agreements. UDel denied on September 12, 2022, asserting it had no responsive public records: the settlements at issue were paid from non-public-funds accounts, so the agreements did not relate to the expenditure of public funds.
Wilson petitioned. He cited a recent federal case involving UDel that, in his view, appeared to involve public-funds expenditure. He also argued that the FOIA coordinator's unsworn email was insufficient to support the denial.
UDel's counsel responded with her own sworn affidavit. She attested that the State appropriates approximately $120 million per year through the State budget, which makes up about 11% of UDel's annual budget; many areas are not supported with State funds. She had personal knowledge of all UDel settlements since January 2019 and confirmed they were paid from an account not supported with public funds, verifying that fact with UDel's Budget Director. She also addressed the federal case Wilson cited and confirmed it did not involve public-funds expenditure.
The AG ruled for UDel. The affidavit met the post-Judicial Watch burden. The Superior Court had recently signaled (in the same Judicial Watch litigation) that generalized affidavit statements would not suffice; UDel's affidavit identified the affiant's role and personal knowledge, the specific verification with the Budget Director, and the specific facts about the cited federal case. That was enough.
What this means for you
For Delaware journalists covering UDel. The 11% number is a hard ceiling on what is FOIA-able at UDel. Most University activity is funded by tuition, donations, sponsored research, and endowment, and those activities generate documents that are not "public records" under Delaware FOIA. Practical paths: (1) target Board of Trustees meetings (always covered as meetings); (2) target documents tied to State appropriations (e.g., specific State-funded programs, salaries paid from State accounts); (3) for general-interest UDel records, try non-FOIA channels (press inquiries, sources inside the University) since FOIA will not get you there; (4) check whether the federal Cleary Act or Title IX disclosures cover the substantive issue. Settlement agreements involving non-State accounts are squarely outside FOIA.
For UDel administrators, legal staff, and FOIA coordinators. The Judicial Watch line of cases requires sworn statements with the affiant's specific personal knowledge of the records search. Generic "we don't have it" emails are no longer sufficient. When you respond to a request, ensure the affiant: (a) names the records reviewed, (b) names the people consulted (with positions), (c) describes the verification steps, and (d) addresses any specific examples cited in the petition. UDel's affidavit here is a clean template.
For state-related higher-education entities in other contexts. Delaware State University and Delaware Technical Community College have their own FOIA-covered/uncovered structures. Do not assume the UDel public-funds rule applies to them. Each institution's enabling statute should be checked separately.
For employment lawyers handling matters with UDel. Settlement agreements in your matter will not become public records as long as they are paid from non-State accounts. That gives both sides reasonable expectations of confidentiality. If a settlement does pull from a State-funded program (rare), the agreement could be FOIA-eligible; build language into the agreement contemplating that possibility.
Common questions
Why is UDel only partially covered by FOIA?
Historical compromise. UDel is a private nonprofit institution with a long history that predates Delaware's FOIA. It receives State appropriations and sits on State land, but it is not a State agency. The General Assembly opted to subject only its Board of Trustees meetings and its public-funds-related documents to FOIA, leaving the rest of its operations subject to the same private-institution privacy as Princeton, Yale, or Penn.
What's the Judicial Watch v. UDel litigation about?
A series of FOIA cases brought by Judicial Watch trying to obtain UDel records about the U.S. Senate career of Joe Biden (a UDel alumnus and former trustee). The Delaware Supreme Court in Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), articulated the affidavit-burden rule (a public body must establish facts on the record under oath that justify a FOIA denial) and the "content relates to the expenditure of public funds" test. The case has continued in the Superior Court with affidavit-sufficiency rulings.
What counts as "public funds" exactly?
Money derived from the State or its political subdivisions. State appropriations to UDel (roughly $120 million / 11% of budget per the affidavit). State-funded grants the University administers. NOT: federal grants, tuition revenue, philanthropic gifts, endowment earnings, sponsored research from non-State sources. The line is purely about the source of funds, not the public character of the activity.
If a settlement is paid from a UDel insurance policy, does the policy count as public funds?
The opinion does not address this directly. The general principle would be: if the insurance premiums were paid from State-appropriated funds, the resulting payout might trace back to public funds; if the premiums came from tuition or other non-State sources, the payout would not. UDel's affidavit said the settlements were "paid from an account that is not supported with public funds," which is broad enough to imply the insurance question, but a future requester could probe further with a request for the funding source of the insurance program itself.
Could Wilson have asked for the Board of Trustees minutes?
Yes, those are squarely covered. The University's counsel attested that no settlements were discussed in the full Board of Trustees minutes since January 2019. Settlement decisions are typically delegated to the General Counsel and / or the Audit and Compliance Committee, neither of which is the "full Board." Committee minutes generally are not covered.
What if a UDel settlement involves alleged misconduct by senior State officials?
The funding-source rule still controls under § 10002(l), unless and until the General Assembly amends UDel's FOIA exposure. The legislative committee with jurisdiction over higher education has, at times, considered broadening UDel's coverage; for current legislative status, check the General Assembly's bill tracker.
Background and statutory framework
29 Del. C. § 10002(l) limits UDel's FOIA coverage to (1) meetings of the full Board of Trustees and (2) university documents relating to the expenditure of public funds.
29 Del. C. § 10002(m) defines "public funds."
The Judicial Watch Supreme Court decision (267 A.3d 996) is the controlling Delaware authority on (a) the public-funds-content test for UDel public records and (b) the public body's burden of proof under § 10005(c). The Superior Court's 2022 follow-up decisions (Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Jun. 7, 2022); 2022 WL 10788530 (Oct. 19, 2022)) refined what counts as a sufficient affidavit.
29 Del. C. § 10005(c) places the burden on the public body. The opinion footnoted that "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.'"
Citations
- 29 Del. C. § 10002(l): UDel FOIA scope
- 29 Del. C. § 10002(m): public funds definition
- 29 Del. C. § 10005, § 10005(c): petition; burden of proof
- 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): affidavit standard; content test
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 2037923 (Del. Super. Jun. 7, 2022): generalized statements insufficient
- Judicial Watch, Inc. v. Univ. of Del., 2022 WL 10788530 (Del. Super. Oct. 19, 2022): supplemental affidavit accepted
Source
- Landing page: https://attorneygeneral.delaware.gov/2022/11/29/22-ib46-11-29-2022-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-the-university-of-delaware/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Attorney-General-Opinion-No.-22-IB46.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB46
November 29, 2022
VIA EMAIL
Xerxes Wilson
The News Journal
[email protected]
RE: FOIA Petition Regarding the University of Delaware
Dear Mr. Wilson:
We write regarding your correspondence alleging that the University of Delaware 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we conclude that the University did not violate FOIA, as it met its burden of proof to demonstrate that it has no public records responsive to your request.
BACKGROUND
On August 22, 2022, you submitted a request to the University seeking "any and all settlement agreements (defined as a legal agreement resulting from a lawsuit or a threat of a lawsuit) between the University of Delaware (regarding elected officials, officers, staff or employees) and other parties from Jan. 2019 to present." In lieu of producing the responsive documents, you stated that your request could be satisfied with a list with the parties involved, date of settlement, cost, and what prompted the settlement. The University denied your request on September 12, 2022, stating that it has no responsive public records. Only University records relating to the public expenditure of funds are considered public records under FOIA, and the University stated the records you seek do not relate to the expenditure of public funds. The University also stated that the Board of Trustees' meeting materials, which are available online, do not contain any responsive materials to your request.
This Petition followed, challenging the accuracy of the University's representation that it has no public records responsive to your request. As an example, you cite to a recent federal case involving the University, stating that it appears "the facts of that case involve the expenditure of public funds." You believe that the circumstances leading to a case involving the expenditure of public funds should factor into determining whether a University record is a public record under FOIA, and you think the University should not rely on the source of the settlement funds to determine if a record is public. Additionally, you argue that the University FOIA coordinator's unsworn statement in her email is insufficient to justify withholding the documents sought.
The University, through its counsel, responded on November 3, 2022 to the Petition ("Response"). The University's counsel contends that the University's denial was proper and in support, attached her sworn affidavit. FOIA defines public funds as funds of the State of Delaware and its political subdivisions, and thus, the University's public records include only records that relate to the expenditure of State dollars. Citing recent caselaw, the University counsel asserts that a document relates to the public expenditure of funds only when the content of that document relates to the expenditure of public funds. The University attests that the State appropriates about $120 million per year through the State budget, which makes up approximately 11% of the University's annual budget; many areas are not supported with State funds. In her affidavit, the University's counsel attests that she has "personal knowledge of all University settlements since January 2019" and "settlements are paid from an account that is not supported with public funds;" further, she verified this fact with the University's Budget Director. She also attests that the referenced case in the Petition did not involve the expenditure of public funds, and to the extent there was a settlement payment, it was not made with public funds. The University's counsel swears that "[b]ased on the foregoing, [she] determined that no State funds were spent by the University in any way on settlements since January 2019 and reported that to [you]." Additionally, she attests that no settlements were discussed in meeting minutes of the full Board of Trustees since January 2019.
DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless 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." The Supreme Court of Delaware remanded this issue to the Superior Court. Proceedings in Judicial Watch are still pending; however, the Superior Court has indicated that generalized assertions in the affidavit will not meet the burden.
The activities of the University are not subject to FOIA, but there are two exceptions. First, the University Board of Trustees is a public body, and "each meeting of the full Board of Trustees . . . [is] a 'meeting.'" Second, only 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." Judicial Watch expressly held "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."
The University's counsel attests that she "reviewed the Board of Trustee[s] meeting materials posted publicly to determine if any of those materials are responsive to FOIA requests" and in this case, she confirmed that "no settlements were discussed in meetings of the full Board of Trustees since January 2019." In addition, the University's counsel swears that she has "personal knowledge of all University settlements since January 2019 and settlements are paid from an account that is not supported with public funds," and before responding to your request, she verified that settlements are paid from nonpublic funds with the University's Budget Director. As such, the content of the settlement agreements do not relate to expenditure of public funds, and the University met its burden to demonstrate it properly denied access to such records, as the settlement agreements are not "public records" as defined by FOIA.
CONCLUSION
For the foregoing reasons, we determine that the University has not violated FOIA by denying access to the requested records.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor
cc: Jennifer M. Becnel-Guzzo, Associate Vice President and Deputy General Counsel