Are settlement agreements that the University of Delaware enters with employees or others available under FOIA, or can UDel withhold them because the settlements weren't paid from State money?

Official title

22-IB46 11/29/2022 FOIA Opinion Letter to Xerxes Wilson re: FOIA Complaint Concerning the University of Delaware

Plain-English summary

The University of Delaware sits in an unusual FOIA position. The opinion explains that the University's activities are generally not subject to FOIA, with two exceptions: meetings of the full Board of Trustees, and "university documents relating to the expenditure of public funds." "Public funds" are defined as "those funds derived from the State or any political subdivision of the State." The opinion relies on Judicial Watch, Inc. v. University of Delaware, which held that a University document is a "public record" only when "the content of that document relates to the expenditure of public funds."

On August 22, 2022, Xerxes Wilson of The News Journal filed a FOIA request for all settlement agreements between UDel and other parties from January 2019 to date. He offered to accept a summary list (parties, date, cost, what prompted the settlement) in lieu of the full agreements. UDel denied on September 12, 2022, asserting it had no responsive public records: the settlements at issue were paid from non-public-funds accounts, so the agreements did not relate to the expenditure of public funds.

Wilson petitioned. He cited a recent federal case involving UDel that, in his view, appeared to involve public-funds expenditure. He also argued that the FOIA coordinator's unsworn email was insufficient to support the denial.

UDel's counsel responded with her own sworn affidavit. She attested that the State appropriates approximately $120 million per year through the State budget, which makes up about 11% of UDel's annual budget; many areas are not supported with State funds. She had personal knowledge of all UDel settlements since January 2019 and confirmed they were paid from an account not supported with public funds, verifying that fact with UDel's Budget Director. She also addressed the federal case Wilson cited and confirmed it did not involve public-funds expenditure.

The AG ruled for UDel. The affidavit met the post-Judicial Watch burden. The Superior Court had recently signaled (in the same Judicial Watch litigation) that generalized affidavit statements would not suffice; UDel's affidavit identified the affiant's role and personal knowledge, the specific verification with the Budget Director, and the specific facts about the cited federal case. That was enough.

What this means for you

For Delaware journalists covering UDel. The opinion confirms that most University activity is outside FOIA. Only two slices are covered: meetings of the full Board of Trustees, and University documents whose content relates to the expenditure of public funds. The University attested that State appropriations are about $120 million per year, roughly 11% of its annual budget, and that many areas are not supported with State funds. Settlement agreements paid from accounts not supported with public funds are not "public records" under FOIA.

For UDel administrators, legal staff, and FOIA coordinators. The opinion holds that the University met its burden because its counsel's affidavit went beyond generalized assertions: she attested to personal knowledge of all University settlements since January 2019, that they were paid from an account not supported with public funds, that she verified this with the University's Budget Director, that no settlements were discussed in full Board of Trustees minutes since January 2019, and that the federal case the petition cited did not involve public funds. The opinion contrasts this with the generalized affidavit statements the Superior Court found insufficient in the pending Judicial Watch litigation.

For employment lawyers handling matters with UDel. The opinion holds that settlement agreements are not public records under FOIA so long as their content does not relate to the expenditure of public funds. Here the University's settlements were paid from a non-public-funds account, so the agreements fell outside FOIA.

Common questions

Why is UDel only partially covered by FOIA?
The opinion states simply that "the activities of the University are not subject to FOIA, but there are two exceptions": each meeting of the full Board of Trustees is a "meeting," and only "university documents relating to the expenditure of public funds" are "public records." It does not give a historical account beyond that.

What is the Judicial Watch v. University of Delaware decision used for here?
The opinion relies on it for two propositions: that under § 10005(c) a public body "must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts," and that a University document "relates to the expenditure of public funds, and thus is a 'public record,' when the content of that document relates to the expenditure of public funds." The opinion notes the case was remanded to the Superior Court and remained pending, with the Superior Court indicating that generalized affidavit assertions will not meet the burden.

What counts as "public funds"?
The opinion defines public funds as "those funds derived from the State or any political subdivision of the State." The University attested that State appropriations are about $120 million per year, roughly 11% of its budget, and that many areas are not supported with State funds. The test turns on the source of the funds.

Could Wilson have obtained the Board of Trustees minutes?
Full Board of Trustees meetings are covered by FOIA. The University's counsel attested that she reviewed the publicly posted Board of Trustees meeting materials and that no settlements were discussed in meetings of the full Board of Trustees since January 2019.

What did the requester argue?
Wilson challenged the accuracy of the University's "no responsive records" representation, cited a recent federal case he believed involved the expenditure of public funds, argued the source of settlement funds should not control whether a record is public, and argued that the FOIA coordinator's unsworn email was insufficient to justify the denial. The University answered with counsel's sworn affidavit, which the AG found sufficient.

Background and statutory framework

The opinion explains that the University of Delaware's activities are generally not subject to FOIA, with two exceptions: each meeting of the full Board of Trustees is a "meeting," and only "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."

Under § 10005(c), the public body has the burden of proof to justify its denial of access to records. The opinion applies the Judicial Watch, Inc. v. University of Delaware standard: a public body "must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts," and a document is a public record only when its content relates to the expenditure of public funds. The opinion notes the Superior Court has indicated that generalized assertions in an affidavit will not meet that burden. The petition was brought under 29 Del. C. § 10005.

Citations

• 29 Del. C. §§ 10001-10007: Delaware FOIA chapter
• 29 Del. C. § 10005: petition for determination
• 29 Del. C. § 10005(c): burden of proof
• Judicial Watch, Inc. v. University of Delaware: affidavit burden and public-funds content test (referenced by name in the opinion)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/29/22-ib46-11-29-2022-foia-opinion-letter-to-xerxes-wilson-re-foia-complaint-concerning-the-university-of-delaware/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/12/Attorney-General-Opinion-No.-22-IB46.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB46
November 29, 2022
VIA EMAIL
Xerxes Wilson
The News Journal
[email protected]

RE: FOIA Petition Regarding the University of Delaware

Dear Mr. Wilson:
We write regarding 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 regarding whether a violation of FOIA has occurred or is about to occur. For the reasons set forth below, we conclude that the University did not violate FOIA, as it met its burden of proof to demonstrate that it has no public records responsive to your request.

BACKGROUND
On August 22, 2022, you submitted a request to the University seeking "any and all settlement agreements (defined as a legal agreement resulting from a lawsuit or a threat of a lawsuit) between the University of Delaware (regarding elected officials, officers, staff or employees) and other parties from Jan. 2019 to present." In lieu of producing the responsive documents, you stated that your request could be satisfied with a list with the parties involved, date of settlement, cost, and what prompted the settlement. The University denied your request on September 12, 2022, stating that it has no responsive public records. Only University records relating to the public expenditure of funds are considered public records under FOIA, and the University stated the records you seek do not relate to the expenditure of public funds. The University also stated that the Board of Trustees' meeting materials, which are available online, do not contain any responsive materials to your request.

This Petition followed, challenging the accuracy of the University's representation that it has no public records responsive to your request. As an example, you cite to a recent federal case involving the University, stating that it appears "the facts of that case involve the expenditure of public funds." You believe that the circumstances leading to a case involving the expenditure of public funds should factor into determining whether a University record is a public record under FOIA, and you think the University should not rely on the source of the settlement funds to determine if a record is public. Additionally, you argue that the University FOIA coordinator's unsworn statement in her email is insufficient to justify withholding the documents sought.

The University, through its counsel, responded on November 3, 2022 to the Petition ("Response"). The University's counsel contends that the University's denial was proper and in support, attached her sworn affidavit. FOIA defines public funds as funds of the State of Delaware and its political subdivisions, and thus, the University's public records include only records that relate to the expenditure of State dollars. Citing recent caselaw, the University counsel asserts that a document relates to the public expenditure of funds only when the content of that document relates to the expenditure of public funds. The University attests that the State appropriates about $120 million per year through the State budget, which makes up approximately 11% of the University's annual budget; many areas are not supported with State funds. In her affidavit, the University's counsel attests that she has "personal knowledge of all University settlements since January 2019" and "settlements are paid from an account that is not supported with public funds;" further, she verified this fact with the University's Budget Director. She also attests that the referenced case in the Petition did not involve the expenditure of public funds, and to the extent there was a settlement payment, it was not made with public funds. The University's counsel swears that "[b]ased on the foregoing, [she] determined that no State funds were spent by the University in any way on settlements since January 2019 and reported that to [you]." Additionally, she attests that no settlements were discussed in meeting minutes of the full Board of Trustees since January 2019.

DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. The Judicial Watch, Inc. v. University of Delaware case provides that Section 10005(c) "requires a public body to establish facts on the record that justify its denial of a FOIA request." "[U]nless it is clear on the face of the request that the demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a public body must state, under oath, the efforts taken to determine whether there are responsive records and the results of those efforts." The Supreme Court of Delaware remanded this issue to the Superior Court. Proceedings in Judicial Watch are still pending; however, the Superior Court has indicated that generalized assertions in the affidavit will not meet the burden.

The activities of the University are not subject to FOIA, but there are two exceptions. First, the University Board of Trustees is a public body, and "each meeting of the full Board of Trustees . . . [is] a 'meeting.'" Second, only 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." Judicial Watch expressly held "that a document relates to the expenditure of public funds, and thus is a 'public record,' when the content of that document relates to the expenditure of public funds."

The University's counsel attests that she "reviewed the Board of Trustee[s] meeting materials posted publicly to determine if any of those materials are responsive to FOIA requests" and in this case, she confirmed that "no settlements were discussed in meetings of the full Board of Trustees since January 2019." In addition, the University's counsel swears that she has "personal knowledge of all University settlements since January 2019 and settlements are paid from an account that is not supported with public funds," and before responding to your request, she verified that settlements are paid from nonpublic funds with the University's Budget Director. As such, the content of the settlement agreements do not relate to expenditure of public funds, and the University met its burden to demonstrate it properly denied access to such records, as the settlement agreements are not "public records" as defined by FOIA.

CONCLUSION
For the foregoing reasons, we determine that the University has not violated FOIA by denying access to the requested records.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc: Jennifer M. Becnel-Guzzo, Associate Vice President and Deputy General Counsel