DOVER, Del. (Legal Newsline) - The Delaware Supreme Court gave two conservative watchdog groups another chance at gaining access to a trove of documents detailing President Joseph Biden’s 36-year career in the U.S. Senate, ruling state officials improperly denied a Freedom of Information Act Request.
Judicial Watch and the nonprofit foundation that owns the Daily Caller news site filed FOIA requests with the University of Delaware for the documents in April 2020. Biden donated his Senate papers, including 1,850 boxes of archival records and 415 gigabytes of data, to his alma mater in 2012.
University officials rejected the requests less than a month later, saying the requested documents weren’t subject to FOIA because state law limits the university to turning over the minutes of trustee meetings and documents related to the expenditure of public funds.
Both organizations appealed to the Delaware Attorney General’s office, which also concluded no violation. They then appealed to Superior Court, arguing the university and AG’s office had improperly shifted the burden to them to prove the documents were public. The Superior Court rejected those arguments in January opinion, agreeing the documents weren’t subject to Delaware’s FOIA statute because the university didn’t expend money to keep them and the records didn’t relate to the expenditure of public funds.
The organizations appealed to the Delaware Supreme Court, which partially reversed, holding that it wasn’t enough for the university to state the documents aren’t subject to FOIA. An official must explain under oath how and why the school rejected the request, the Supreme Court ruled in a Dec. 6 decision by Justice Tamika R. Montgomery-Reeves.
“The resolution of a legal action must rest on competent, reliable evidence,” the court ruled. “When an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath.”
The public is at a disadvantage in seeking public records because only the government knows what records it possesses, the court said. Unless it is clear from the request that the documents are exempt from FOIA, the court continued, “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.”
The decision drew a dissent from Justice James T. Vaughn, who said the “claims in this case have no merit and the case should be put to an end now.”
The court declined to award the two organizations legal fees, leaving that to be resolved by the trial court on remand.