267 A.3d 996
Del.2021Background
- In 2012 Vice President Joe Biden donated ~1,850 boxes and 415 GB of senatorial papers to the University of Delaware under a gift agreement that controls public access.
- In April 2020 Judicial Watch and the Daily Caller News Foundation (Appellants) served FOIA requests seeking the Papers, the Gift Agreement, communications about release of the Papers, and related records.
- The University denied the requests, asserting FOIA exemption in 29 Del. C. § 10002(l): university records are excluded from FOIA except (a) full Board of Trustees meetings and minutes, and (b) university documents that "relate to the expenditure of public funds." The University said the Papers and communications do not "relate to" expenditure of public funds and the full Board never discussed the Papers.
- The Delaware Deputy Attorney General and the Superior Court upheld the denials. The Superior Court invited the University to recheck the Gift Agreement; the University represented (unsworn) it does not reference public-fund expenditures.
- On appeal the Delaware Supreme Court affirmed the court’s statutory interpretation ("relate to" means the document's content must give an account of public-fund expenditure), held the Superior Court did not improperly shift the burden, but reversed and remanded because the University failed to meet its Section 10005(c) burden with competent, sworn evidence about searches and expenditures. The Court left fees for possible reconsideration on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of "public record" under §10002(l) — what "relat[e] to the expenditure of public funds" means | Any document that is supported in any part by public funds or references activities funded by public dollars (e.g., staff time, storage) is a public record | A document is a public record only if its content itself gives an account of how the University spends public funds (budgetary/contractual documents) | Held: "Relate to" means the document's content must give an account of the University's expenditure of public funds; Appellants' broader reading rejected. |
| What constitutes a "meeting" for Board-of-Trustees records under §10002(l) | Appellants suggested Board subsets or executive sessions could be used to avoid disclosure; sought related minutes | University: only meetings of the full Board are FOIA "meetings"; executive sessions are governed by statute and must be reflected in public minutes | Held: Only full Board meetings are FOIA "meetings"; executive sessions and votes to go into executive session are recorded in public minutes required by statute. |
| Burden of proof under §10005(c) — whether Superior Court shifted burden to Appellants | Appellants argued the court treated their speculation as requiring proof and thus shifted burden | University argued it provided reasons for denial and Flowers allows meeting the burden without an index or extensive compilation | Held: Burden is on the public body; Superior Court did not improperly shift the burden to Appellants. |
| Sufficiency of unsworn counsel representations vs requirement for sworn evidence to meet §10005(c) | Unsworn representations are insufficient; public body must provide sworn statements/affidavits describing search efforts and factual basis for denial | University relied on Flowers and statutory language to argue only reasons are required and indices are not; suggested unsworn counsel statements suffice | Held: Unless records are clearly not subject to FOIA on their face, the public body must support denials with competent sworn evidence (e.g., affidavits) describing the search and factual basis; unsworn counsel statements were insufficient here. |
| Adequacy of search and entitlement to attorneys' fees under §10005(d) | Appellants contended University conducted only categorical denials without adequate search and should be awarded fees because remand vindicated their position | University said no responsive public-fund-related records exist and no further search was required for facially excluded materials | Held: Court remanded to let the Superior Court determine adequacy of search based on sworn evidence; fee award deferred — plaintiff not yet a successful FOIA plaintiff, but Superior Court may reconsider fees on remand. |
Key Cases Cited
- Flowers v. Office of the Governor, 167 A.3d 530 (Del. Super. Ct. 2017) (an affidavit plus detailed written reasons may suffice to meet FOIA burden; statutory ban on indices limits required disclosures)
- Del. Dep’t of Nat. Res. & Env’t Control v. Sussex Cnty., 34 A.3d 1087 (Del. 2011) (statutory interpretation and de novo review principles)
- Del. Solid Waste Auth. v. News-Journal Co., 480 A.2d 628 (Del. 1984) (FOIA's purpose to ensure governmental accountability and public access)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (recognition of FOIA requester's informational disadvantage and importance of agency affidavits)
- Gannett Co. v. Bd. of Managers of the Del. Crim. Just. Info. Sys., 840 A.2d 1232 (Del. 2003) (standard of review for fee awards)