IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUDICIAL WATCH, INC., a District of
Columbia corporation, and THE DAILY
CALLER NEWS FOUNDATION,
Petitioners BelowAppellants,
v.
DELAWARE DEPARTMENT OF
JUSTICE and UNIVERSITY OF
DELAWARE,
Respondents
Below-Appellees.

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C.A. No. ___________

NOTICE OF APPEAL
Petitioners Below-Appellants Judicial Watch, Inc. and The Daily Caller News
Foundation (together, “Appellants”) hereby appeal the Chief Deputy Attorney
General’s June 25, 2020 Opinion No. 20-IB19 (the “Judicial Watch Opinion,”
attached hereto as Exhibit A) and the Chief Deputy Attorney General’s July 1, 2020
Opinion No. 20-IB20 (the “DCNF Opinion,” attached hereto as Exhibit B, together
with the Judicial Watch Opinion, the “Opinions”), which rejected Appellants’
petitions pursuant to 29 Del. C. § 10005(e) appealing the University of Delaware’s
denial of Appellants’ April 30, 2020 requests for public documents under
Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA,” or
the “Act”). In support of this appeal, Appellants allege as follows:

 This Court has jurisdiction over this appeal under 29 Del. C. § 10005(b),
which is being filed within 60 days of the issuance of the Opinions. Appellants
respectfully ask this Court to reverse legal and factual errors contained in the
Opinion and order the University of Delaware to disclose all public records
responsive to the requests. In support, Appellants state the following:
1.

Appellant Judicial Watch, Inc. (“Judicial Watch”) is a not-for-profit,

educational organization incorporated under the laws of the District of Columbia and
headquartered at 425 Third Street, S.W., Suite 800, Washington, DC 20024.
Petitioner seeks to promote transparency, accountability, and integrity in
government and fidelity to the rule of law. As part of its mission, Judicial Watch
regularly requests records under federal and state “open records” laws, analyzes the
responses and any records it receives, and disseminates its findings and the records
to the public to inform them about their government.
2.

Petitioner the Daily Caller News Foundation (“DCNF”) has its

principal place of business at 1920 L Street, N.W., Suite 200, Washington, DC
20036.

Founded in 2011 by Tucker Carlson, a 20-year veteran of print and

broadcast media, and Neil Patel, former chief policy adviser to Vice President Dick
Cheney, DCNF is a 501(c)(3) non-profit organization providing original
investigative reporting from a team of professional reporters that operates for the
public benefit.

DCNF’s website reaches approximately three million unique

2

 monthly visitors and its content, which is available without charge to any eligible
news publisher, is published by The Daily Caller, Yahoo News, Business Insider,
and a growing host of other media outlets, reaching a combined audience estimated
in excess of 30 million readers.
3.

The Board of Trustees of Respondent Below-Appellee University of

Delaware (the “University”) is a public body, and the University’s documents
relating to the expenditure of public funds are public records.

See 29 Del. C.

§ 10002(i). The University has possession, custody, and control of the records to
which Appellants seek access.
4.

The Delaware Department of Justice, and the Chief Deputy Attorney

General, are vested, in the first instance, with the duty to determine whether a
violation of FOIA has occurred or is about to occur. See 29 Del. C. § 10005.
5.

On April 30, 2020, Judicial Watch submitted a FOIA request (the

“Judicial Watch Request”) to the University seeking:
A. 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.

3

 B. 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.
6.

On May 20, 2020, the University denied Judicial Watch’s request,

stating, without corroboration, that public funds are not used to support the Joseph
R. Biden, Jr. Senatorial Papers.
7.

On May 26, 2020, Judicial Watch filed a petition with the Office of the

Attorney General under 29 Del. C. § 10005(b) for a determination whether the
University violated FOIA by denying the Judicial Watch Request.
8.

On June 5, 2020, the University responded to the Petition, and again

stated without corroboration that “[p]ublic funds are not used to support the Joseph
R. Biden, Jr. Senatorial Papers.”
9.

On June 25, 2020, the Chief Deputy Attorney General issued the

Judicial Watch Opinion, concluding that the University had not violated FOIA when
it denied Judicial Watch’s request.

The Chief Deputy Attorney General’s

determination is largely based on the University’s uncorroborated representation that
no public funds were used to support the Joseph R. Biden, Jr. Senatorial Papers.
10.

On April 30, 2020, DCNF submitted a FOIA request (the “DCNF

Request”) to the University seeking:
A. All agreements, including modifications, revisions, or updates,
concerning the storage of more than 1,850 boxes of archival records
4

 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 for
anyone representing any of those entities between 2010 to the date of
this request about Joe Biden’s senate records.
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.
11.

On May 20, the University denied the DCNF request, on the basis that

the documents “requested do not relate to the expenditure of public funds.”
12.

On May 29, 2020, DCNF filed a petition with the Office of the Attorney

General under 29 Del. C. § 10005(b) for a determination whether the University
violated FOIA by denying DCNF’s request (the “DCNF Petition”).
13.

On July 1, 2020, the Chief Deputy Attorney General issued the DCNF

Opinion, concluding that the University had not violated FOIA when it denied the
DCNF request. As with the Judicial Watch Opinion, the DCNF Opinion is based
in part on the University’s uncorroborated representation that no public funds were
or are used to support the Joseph R. Biden, Jr. Senatorial Papers.
14.

Respectfully, the Opinions contain the following errors of law from

which Appellants seek this Court’s review:
5

 a.

Both Opinions improperly shift the burden of proof to

Appellants, in violation of 29 Del. C. § 10005(c).

The Chief Deputy

Attorney General accepted the University’s representations that no public
funds are used to support the Joseph R. Biden, Jr. Senatorial Papers at face
value without factual support. The Judicial Watch Opinion even refers to
the University’s uncorroborated statements as a “factual record” and
concludes that the requested records are therefore not “public records” subject
to FOIA.
b.

Both Opinions err by concluding that the Joseph R. Biden, Jr.

Senatorial Papers are not “public records” as defined by 29 Del. C. § 10002(l).
c.

Both Opinions fail to analyze whether a violation of FOIA

occurred, in violation of 29 Del. C. § 10005(b), based on the Opinions’
erroneous burden-shifting, and the erroneous conclusion that the Joseph R.
Biden, Jr. Senatorial Papers are not “public records.”
d.

In addition to the above errors, the DCNF Opinion is based in

part on an erroneous conclusion concerning the University’s library’s public
vs. private status.
15.

As a result of the Opinions, the University has failed to conduct

sufficient searches for records responsive to Appellants’ FOIA requests, and

6

 Appellants have been denied their legal right to inspect public records under 29 Del.
C. § 10003.
WHEREFORE, Appellants respectfully request that the Court:
(1)

Issue a citation to the custodian of records for the Attorney

General’s office directing such custodian to send the Superior Court a certified
copy of the record of the proceedings below, including a typewritten copy of
the evidence;
(2)

Set a schedule pursuant to which the parties may submit written

briefs in support of their arguments on appeal;
(3)

Declare that the Opinions contain the errors of law referenced

above;
(4)

Order that the University produce all public records responsive

to the Judicial Watch Request and the DCNF Request;
(5)

Award Appellants their attorneys’ fees and costs pursuant to 29

Del. C. § 10005; and
(6)

Grant such other relief as the Court deems just and proper.

7

 Dated: July 2, 2020

HALLORAN FARKAS + KITTILA LLP
/s/ William E. Green, Jr.
Theodore A. Kittila (Bar No. 3963)
William E. Green, Jr. (Bar No. 4864)
5801 Kennett Pike, Suite C/D
Wilmington, Delaware 19807
Phone: (302) 257-2025
Fax: (302) 257-2019
Email: tk@hfk.law / wg@hfk.law
Counsel for Petitioners BelowAppellants Judicial Watch, Inc. and The
Daily Caller News Foundation

8

 EXHIBIT A

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.
SDunagan@JUDICIALWATCH.ORG
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.1
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.”2 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.3 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.”4
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.”5 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.”6
                                                            
1

Petition.

2

Id.

3

Id.

4

Id.

5

Response.

6

Id.

 

 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.’”7 Second, the “university documents relating to the expenditure of public funds [are]
‘public records.’”8 Public funds are defined as “those funds derived from the State or any political
subdivision of the State.”9 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.”10
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.11 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.12
CONCLUSION
 

For the above reasons, this Office concludes that the University has not violated FOIA as
alleged.
                                                            
7

29 Del. C. § 10002(i).

8

Id.

9

29 Del. C. § 10002(k).

10

29 Del. C. § 10002(i).

11

See Del. Op. Att’y Gen. 17-IB59, 2017 WL 6348853, n. 12 (Nov. 20, 2017) (accepting the
factual representations made by the public body’s attorney).
12

See Del. Op. Att’y Gen. 10-IB06, 2010 WL 3195780, at *4 (July 15, 2010) (finding that
certain bid documents, contracts, payment records, and funding documents of Delaware State
University were “public records” as defined by FOIA); Del. Op. Att’y Gen. 00-IB08, 2000 WL
1092967, at *2 (May 24, 2000) (finding that “[a]ny documents relating to the spending of state
funds for those infrastructure improvements are ‘public records’”). 
 

 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

 EXHIBIT 

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-IB20
July 1, 2020
VIA EMAIL
Andrew Kerr
Daily Caller News Foundation
akerr@dailycallernewsfoundation.org
RE:

FOIA Petition Regarding the University of Delaware

Dear Mr. Kerr:
We write in response to 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(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. 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.
2. 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 for anyone representing any of
those entities between 2010 to the date of this request about Joe Biden’s senate
records.
3. 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.

 4. All records from Joe Biden's Senate career that have been submitted to the
University of Delaware Library.1
By email dated May 20, 2020, the University responded to your request, stating that it had
no responsive public records. The University stated that the “documents you have requested do
not relate to the expenditure of public funds.”2 The University also referred you to its website
regarding access to the senatorial papers. This Petition followed.
This Petition challenges the University’s denial of access to the requested records, arguing
that these records relate to the expenditure of public funds. The Petition states the University
received over $118 million in State funds in fiscal year 2019, most of which was allocated to a
general unrestricted fund, in addition to a $3.6 million contingency funds for personnel costs
“which could have been used to pay the salaries of University of Delaware library employees”
who are responsible for curating and managing the marketing for the senatorial papers.3 Finally,
you note that the purpose of the donation of these records was to make them available for public
access.
On June 11, 2020, the University’s counsel responded to the Petition (“Response”).
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.”4
The University states that it appropriately denied your request, stating “[p]ublic funds are not used
to support the Joseph R. Biden Jr. Senatorial Papers.”5 The University also explicitly denies your
speculation that the two identified employees are paid with public funds; the University’s counsel
states they are not. The University further contends even if such salaries were publicly funded,
that would not render every document that employee reviews, creates, or receives a public record.
The University notes that its full Board of Trustees has not discussed the senatorial papers,
meaning that there no public meeting records to provide. Finally, the University states that your
request for the log of library patrons does not relate to public expenditures, and even if they did,
FOIA’s exemption regarding library patrons’ records would apply.

                                                            
1

Petition.

2

Id.

3

Id.

4

Response.

5

 

Id.

 DISCUSSION
FOIA does not apply to the University of Delaware with the exception of two specific
areas. First, the Board of Trustees is a public body, “and each meeting of the full Board of Trustees
. . . [is] a ‘meeting.’”6 Second, the “university documents relating to the expenditure of public
funds [are] ‘public records.’”7 Public funds are defined as “those funds derived from the State or
any political subdivision of the State.”8 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.”9
The University’s counsel specifically states that no public funds were used for the
senatorial papers,10 and thus, your first and second requests do not seek public records related to
the expenditure of public funds.11 The third request also does not seek public records, as a library
patron log does not relate to the expenditure of public funds and as the University points out, such
records are also exempt from FOIA as “records of a public library which contain the identity of a
user and the books, documents, films, recordings or other property of the library which a patron
has used.”12 Finally, the request seeks to obtain the senatorial papers from the University’s library
using the FOIA process. Attempting to access library records through the FOIA process is an
inappropriate use of FOIA that does not advance FOIA’s objective of furthering the accountability
of government to its citizens.13 Moreover, the FOIA statute does not designate the University
library as a public body nor as discussed above, are the senatorial papers public records.
                                                            
6

29 Del. C. § 10002(i).

7

Id.

8

29 Del. C. § 10002(k).

9

29 Del. C. § 10002(i).

10

See Del. Op. Att’y Gen. 17-IB59, 2017 WL 6348853, n. 12 (Nov. 20, 2017) (accepting the
factual representations made by the public body’s attorney).
11

See Del. Op. Att’y Gen. 10-IB06, 2010 WL 3195780, at *4 (July 15, 2010) (finding that
certain bid documents, contracts, payment records, and funding documents of Delaware State
University were “public records” as defined by FOIA); Del. Op. Att’y Gen. 00-IB08, 2000 WL
1092967, at *2 (May 24, 2000) (finding that “[a]ny documents relating to the spending of state
funds for those infrastructure improvements are ‘public records.’”).
12

29 Del. C. § 10002(l)(12).

13

29 Del. C. § 10001. 

 

 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