The Delaware Supreme Court ruled this week that the University of Delaware must provide more information justifying its decision to keep secret its deal to house and restrict access to the U.S. Senate records of President Joe Biden. The Delaware Supreme Court reversed the Delaware Superior Court and found that the University of Delaware had not carried its burden justifying its refusal to produce records. The case returns to the Delaware Superior Court for further proceedings.
The Daily Caller News Foundation and Judicial Watch initially filed the July 2020 state Freedom of Information Act (FOIA) lawsuit after the University of Delaware denied their requests on April 30, 2020, for all of Biden’s Senate records and for records about the preservation and any proposed release of the records, including communications with Biden or his representatives (Judicial Watch, Inc. v. University of Delaware, No. N20A-07-001 MMJ (Del. Super.)).
Tara Reade, who has accused Biden of sexually assaulting her in 1993 when she worked as a staff assistant to the then-senator, has said that she believes a workplace discrimination and harassment complaint she filed against Biden at the time may be in the records housed at the University of Delaware. Biden also admitted to communicating with Vladimir Putin and other foreign leaders when he was a United State Senator.
In January 2021, Judicial Watch filed an appeal to the Delaware Supreme Court, asking for a reversal of the opinion of the Delaware Superior Court, which blocked a state FOIA request for access to records about President Biden’s senatorial records held by the University of Delaware. Biden’s papers include more than 1,850 boxes of archival records from his Senate career.
In yesterday’s opinion, Delaware Supreme Court ruled that the state’s open records law requires the University must provide additional information, under oath, to justify its refusal to produce records about its dealings with Biden:
[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, satisfaction of Section 10005(c)’s burden of proof requires a statement made under oath. Such a reading of the statutory text is also supported by the statute’s purpose. FOIA safeguards a democratic society by ensuring the meetings and records of governmental entities are available to the public….
Therefore, if a public body is to deny citizens an opportunity to “observe the performance of public officials and to monitor the decisions that are made by such officials,” the public body must satisfy its burden of proof under FOIA in a manner that tracks the seriousness of the statute’s purpose and policy. Statements made under oath, such as through a sworn affidavit, accomplish that goal; they bear earmarks of reliability and instill a measure of seriousness in the affiant by subjectingthe affiant to the risk of penalty of perjury.
Regarding the reversal of the Superior Court’s decision, the opinion instructs:
Because the University’s factual assertions to the Deputy Attorney General and the Superior Court were not made under oath and do not describe the efforts taken to identify responsive documents, they are not sufficient to meet FOIA’s burden of proof. On remand, the Superior Court shall determine whether the University has satisfied its burden of proof based on competent evidence in accordance with this ruling. The Superior Court is granted leave to accept additional evidence or submissions as it deems necessary and appropriate.
“The University of Delaware should stop trying to hide records from the president’s decades of political activities. They should be public. This level of corruption should not be happening in America,” Daily Caller News Foundation President Neil Patel said.
“This Delaware Supreme Court decision is a remarkable pushback on the University of Delaware’s secret deal with Joe Biden to hide his Senate records,” stated Judicial Watch President Tom Fitton. “In the meantime, why won’t President Biden simply release his Senate records? What is he trying to hide?”
Judicial Watch and the Daily Caller News Foundation are being represented by Delaware lawyers Ted Kittila and Bill Green of Halloran Farkas + Kittila LLP.