Can a national news organization use Delaware FOIA to demand the Biden senatorial papers themselves from the University of Delaware Library?

Plain-English summary

This is the second of two 2020 AG opinions on Biden senatorial-papers FOIA requests at UD (the other is Op. 20-IB19, Judicial Watch). Andrew Kerr of the Daily Caller News Foundation asked UD for:

1. Storage agreements (and modifications) for 1,850 boxes and 415 GB of Biden's Senate records.
2. Communications between UD library staff and Biden, his staff, his vice-presidential or campaign staff between 2010 and the request date.
3. Library patron logs of visitors to the special-collections department where Biden's records are stored.
4. The senatorial papers themselves.

UD denied. Kerr argued that UD received over $118 million in state funds in FY 2019, including $3.6 million in personnel-cost contingency, so library employees managing the papers must be paid with public funds.

The AG ruled for UD on every count:

1. The papers are not "documents relating to the expenditure of public funds." UD's counsel explicitly represented that no public funds support the senatorial papers and that the two identified employees are not paid with public funds. Even if they were, the AG observed that "would not render every document that employee reviews, creates, or receives a public record."
2. Library patron logs are categorically exempt under FOIA's library-patron-records exemption, which protects "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."
3. Trying to get the senatorial papers via FOIA is "an inappropriate use of FOIA" that "does not advance FOIA's objective of furthering the accountability of government to its citizens." The FOIA statute does not designate the University library as a public body.
4. Communications with Biden and his campaign are not "documents relating to the expenditure of public funds" because no public funds went to Biden or his campaign.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The opinion described UD's partial FOIA coverage this way:

• Full Board of Trustees is a "public body" subject to open-meeting requirements.
• University documents relating to the expenditure of public funds are "public records."
• Other UD activity, including library operations not tied to state funding, is outside FOIA.

The opinion quoted FOIA's definition of "public funds" as "those funds derived from the State or any political subdivision of the State." Donor money, federal grants flowing through to private research, and tuition revenue are not public funds.

Library patron records are protected by FOIA's library-patron-records exemption regardless of which entity holds the records. This is a free-speech and intellectual-freedom protection, not just a UD-specific exemption.

The "public funds employee" theory Kerr advanced (any employee partially paid by state funds touches public records) is rejected at multiple levels. State appropriations to universities are general support; they do not transform every employee's work product into public records.

Common questions

Q: Is this opinion the same as Op. 20-IB19?
A: They cover overlapping ground. Op. 20-IB19 (Judicial Watch) addressed records about the proposed release of the papers and communications with Biden. Op. 20-IB20 (this one, Daily Caller) added library patron logs and the senatorial papers themselves as additional categories. Both denied.

Q: Why are library patron logs categorically exempt?
A: Library-use records are protected to safeguard intellectual freedom. Knowing what books or documents a patron has accessed could chill research and inquiry. The opinion treated FOIA's library-patron-records exemption as a categorical bar, protecting "records of a public library which contain the identity of a user" and the materials the patron used.

Q: Could the senatorial papers ever become public via FOIA?
A: Not directly. The opinion called using FOIA to obtain the papers "an inappropriate use of FOIA" and noted the statute does not designate the University library as a public body. Public access depends on the University's own access terms for the papers, not on FOIA.

Q: Would communications about spending state funds on the papers be FOIA-able?
A: Yes. If state funds went into archival climate control, security upgrades, or staff dedicated to the papers, the related records would be public records under FOIA. UD's counsel asserted that no such expenditures exist for these papers.

Q: Does this opinion apply to all university libraries in Delaware?
A: It applies to UD's library directly. FOIA's library-patron-records exemption itself applies broadly to public libraries.

Q: What if I'm researching public history and want library finding aids?
A: UD's finding aids are typically published online and accessible without a FOIA request. Patron logs (who has accessed the materials) are not.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007 (Delaware Freedom of Information Act)
• 29 Del. C. § 10005(e) (petition determinations)

Source

• Landing page: https://attorneygeneral.delaware.gov/2020/07/01/20-ib20-7-1-2020-foia-opinion-letter-to-mr-andrew-kerr-re-foia-complaint-concerning-the-university-of-delaware/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2020/07/Attorney-General-Opinion-No.-20-IB20.pdf

Original opinion text

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
[email protected]

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.

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." 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. 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." 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." 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.

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.'" Second, 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." 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."

The University's counsel specifically states that no public funds were used for the senatorial papers, and thus, your first and second requests do not seek public records related to the expenditure of public funds. 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." 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. Moreover, the FOIA statute does not designate the University library as a public body nor as discussed above, are the senatorial papers public records.

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