IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUDICIAL WATCH, a District of ) Columbia corporation, and THE DAILY ) CALLER NEWS FOUNDATION, ) ) Petitioners-Below, ) Appellants, ) ) C. A. No. N20A-07-001 FWW v. ) ) UNIVERSITY OF DELAWARE, ) ) Respondent-Below, ) Appellee. )
Submitted: July 31, 2024 Decided: August 5, 2024
Upon Petitioners’ Motion for Relief from Judgment DENIED.
MEMORANDUM OPINION
William E. Green, Jr., Esquire, Theodore A. Kittila, Esquire, Michael Bekesha, Esquire, HALLORAN FARKAS + KITTILA, LLP, 5722 Kennett Pike, Wilmington, DE 19807, attorneys for Judicial Watch and The Daily News Foundation, Petitioners-Below, Appellants.
William E. Manning, Esquire, James D. Taylor, Esquire, Marisa R. De Feo, Esquire, Juliana Clifton, Esquire, SAUL EWING LLP, 1201 N. Market Street, Suite 2300, Wilmington, DE 19801, attorneys for University of Delaware, Respondent-Below, Appellee.
WHARTON, J. I. INTRODUCTION
In 2012, then-Vice President Joseph R. Biden, Jr. donated his Senatorial
papers (“Papers”) to the University of Delaware (the “University”) subject to an
agreement that restricted the University’s ability to make the Papers available to the
public. The Papers are voluminous, consisting of nearly 2,000 boxes and over 400
gigabytes of electronic records. In 2020, Judicial Watch, Inc. (“Judicial Watch”)
and the Daily Caller News Foundation (“DCNF”) (collectively, the “Petitioners” or
“Appellants”) submitted separate requests to the University under the Delaware
Freedom of Information Act (“FOIA”)1 to access the Papers and related records.
In its opening section, FOIA sets out its “Declaration of Policy”:
It is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic. Toward these ends, and to further the accountability of government to the citizens of this State, the chapter is adopted, and shall be construed.2
But, as the expression goes, the devil is in the details. In FOIA’s Declaration of
Policy, it appears the devil is in the exemptions. The University is specifically
1 29 Del. C. §§ 10001-10007. 2 29 Del. C. § 10001. 2 exempted – ‘“Public body,’ ‘public record,’ and ‘meeting’ shall not include the
activities of the University of Delaware and Delaware State University.’”3 There
are three exceptions to that exemption. One is that the Board of Trustees of the
University is a “public body,” another that meetings of the full Board of Trustees are
public “meetings,” and the third that “documents relating to the expenditure of
public funds” are “public records.” 4 Exercising its exemption, the University denied
both FOIA requests.
Litigation in this Court and the Delaware Supreme Court has clarified and
narrowed the Court’s present focus. First, the Supreme Court explained, “documents
relating to the expenditure of public funds” are documents that “give an account of
the University’s expenditure of public funds” as opposed to documents that were
created using public funds. 5 Second, in order for the University to sustain its denial
of a FOIA request, it must provide the requestor with “[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.”6
Ultimately, this Court and the Supreme Court were satisfied that the University had
met its burden in denying the Appellant’s requests. 7
3 29 Del. C. 10002(i) 4 Id. 5 Judicial Watch, Inc. v University of Delaware, 267 A.3d 996, 1005 (Del. 2021) 6 Id. at 1012-13. 7 Judicial Watch, Inc. v. University of Delaware, 2022 WL 10788530 at *3 (Del. 3 The case was closed, and so matters stood until Special Counsel Robert K.
Hur (“Hur”), who was appointed to investigate the handling of classified materials
by now-President Biden during his years as Senator and Vice-President, issued his
report (the “Hur Report”). The Hur Report disclosed that two of President Biden’s
longtime former Senate staffers were paid by the University to conduct a pre-
donation review of the Senate Papers and recommend to him which papers to
donate.8 In the Appellants’ view, this disclosure contradicts the sworn affidavit
upon which this Court relied in denying them relief, requiring this Court to vacate
its prior judgment and/or to reopen the record to allow them to take additional
discovery to vet the University’s earlier representations. 9
The Court is unpersuaded for three reasons, discussed more fully in this
Memorandum Opinion. First, the Court is not persuaded that the revelation in the
Hur Report contradicts the broad representations by the University that formed the
basis of the Court’s earlier decision. Second, and more importantly, as counsel for
the Appellants acknowledged at oral argument, the only question opening the
judgment would resolve is whether any records exist relating to the expenditure of
State funds in connection with the University’s payment to the former Biden staffers.
Super. Ct. Oct. 19, 2022) (aff’d Judicial Watch, Inc. v. University of Delaware, 2023 WL 4377918 (Del. Jul. 6, 2023). 8 Appellants’ Mot for Relief, at 2, D.I. 42. 9 Id. at 6. 4 On July 18, 2024, the University submitted an affidavit from its FOIA Coordinator,
Tara Mazer, reporting that, after an inquiry, the payments to the former Biden
staffers were not made with State funds. The only outstanding question has been
answered. Finally, at argument, counsel for the University stated that the University
would answer specific FOIA requests asking the University to produce any
documents related to the expenditure of State funds in connection with the payments
to the former Biden staffers. To the extent Appellants are dissatisfied with the
University’s most recent response, it should take counsel up on his offer.
II. FACTS AND PROCEDURAL HISTORY
This case traces its origin to June 6, 2012, when then-Vice President Joseph
R. Biden, Jr. donated the Papers to the University’s Library.10 The Papers consisted
of more than 1,850 boxes of archival records and 415 gigabytes of electronic records
from President Biden's 36-year career in the United States Senate. 11 They were
acquired by the University pursuant to a gift agreement that allows the University to
make the Papers publicly available after they have been properly processed and
archived.12
On April 30, 2020, Judicial Watch, a nonprofit organization that regularly
requests government records under federal and state “freedom of information”
10 Judicial Watch, 276 A.3d at 999. 11 Id. 12 Id. 5 acts, submitted a request under 29 Del. C. 10003 (the “Judicial Watch Request”) to
the University, seeking “all records and communications from the University about
the proposed release of the Papers, as well as any communications between
the University and either President Biden or anyone acting on his behalf.” 13 On
April 30, 2020, DCNF, a nonprofit media organization, also submitted a much
broader FOIA request to the University (the “DCNF Request”). The DCNF
Request, demanded not only “communications between the University and
President Biden and his staff, but also visitor logs from the department where the
Papers are housed, the Papers themselves, and the Agreement under which the
Papers were donated to the University.”14
On May 20, 2020, the University, through its FOIA Coordinator, Associate
Vice President, and Deputy General Counsel, Jennifer Becnel-Guzzo (“Becnel-
Guzzo”), denied both requests. 15 The University reasoned that, since
only University records that relate to the expenditure of public funds are considered
“public records” subject to disclosure under § 10002(i), and since no public funds
had been spent in relation to the Papers, they were not subject to disclosure under
FOIA. 16
13 Id. at 1000. 14 Id. 15 Id. at 1001. 16 Id. 6 On May 26, 2020, Judicial Watch petitioned the Delaware Attorney General’s
Office (“AGO”), claiming that the University’s denial of its request violated FOIA
because the University expended public funds on the Papers by storing them in the
University’s library and paying library staff and because the University failed to
adequately search for the requested records. 17 On May 28, 2020, DCNF likewise
petitioned the AGO to review the University’s denial of its request for a potential
FOIA violation. 18 On June 25, 2020, and July 1, 2020, the AGO issued opinions
concluding that the University had not violated FOIA.19
On July 2, 2020, the Appellants filed a joint notice of appeal in the Superior
Court.20 The Appellants argued that in accepting the University’s uncorroborated
representations regarding the content of the requested records, the AGO improperly
shifted the burden of proof to the Appellants, erroneously concluded that the Papers
were not subject to FOIA, and incorrectly concluded that the University conducted
adequate searches to discover whether any records were responsive to their requests.
This Court affirmed the AGO’s decisions.21 It held, among other things, that
the phrase “relating to the expenditure of public funds” meant “those [documents]
17 Id. 18 Id. 19 Id. at 1001-02. 20 D.I. 1. 21 Judicial Watch v. Delaware Dept. of Justice, 2021 WL 22550 (Del. Super. Ct. Jan., 2021). 7 that discuss or show how the University itself spends public funds.”22 Because the
Papers were not likely to discuss how the University spends public funds, this Court
held that they are not “public records” and thus not subject to FOIA. 23 Turning to
the Appellants’ argument that uncorroborated statements by the University’s Deputy
General Counsel regarding the use of public funds to support the Papers are
insufficient to meet the University’s burden of proof under Section 10005(c), this
Court noted that FOIA only requires the University to provide its reasons for
denying a request - not supporting proof.24 It further noted that because
all Delaware lawyers are bound by a duty of candor, the representations by
the University’s counsel should be given proper weight and held that
the University satisfied its burden of proof required by FOIA. 25
On appeal, the Delaware Supreme Court affirmed this Court in part, and
reversed it in part.26 The Supreme Court affirmed this Court in holding that a
document is a “public record” and subject to FOIA when the content of the document
itself relates to the expenditure of public funds. 27 But, the Supreme Court held that
FOIA required that the University provide more than this Court required in order to
22 Id. at *6. 23 Id. at *4-5. 24 Id. 25 Id. 26 Judicial Watch, 267 A.3d 996. 27 Id. at 1005. 8 carry its burden of proof. That Court held that, in order to meet its burden of proof,
“a public body must state, under oath, the efforts taken to determine whether there
are some responsive records and the results of those efforts.”28 It remanded the
matter to this Court to determine “whether the University has satisfied its burden of
proof based on competent evidence in accordance with this ruling” and granted this
Court leave to accept additional evidence or submissions.29
On remand, the University filed an Opening Brief,30 accompanied by an
affidavit from Becnel-Guzzo, dated February 3, 2022.31 Appellants filed an
Answering Brief, challenging the sufficiency of the affidavit in several respects.32
By Memorandum Opinion dated March 7, 2022, this Court found that the
generalized statements in the Affidavit did not meet “the burden to create a record
from which the Superior Court can determine whether the University performed an
adequate search for responsive documents.” 33 The Court directed the University to
provide more specific information as to who (identified at least by position within
the University) supplied the information that: (1) no State funds were spent by the
University; (2) no salaries of any University personnel involved in the custody and
28 Id. at 1012. 29 Id. 30 Appellee’s Op. Br., D.I. 26. 31 Becnel-Guzzo Aff., D.I. 25. 32 Appellee’s Ans. Br., D.I. 27. 33 Judicial Watch v. University of Delaware, 2022 WL 2037923 at *3 (Del. Super. Ct. Jun. 7, 2022). 9 curation of the papers were paid with State funds; (3) no State funds were spent on
the University's email system for communications between University personnel and
Biden representatives; (4) when such inquiries were made; and (5) what, if any,
documents (other than the gift agreement) were reviewed.34 Respondents were
granted leave to submit additional information, under oath, within 45 days of the
date of the Memorandum Opinion.35
The University filed a Supplemental Affidavit of Becnel-Guzzo, dated July
22, 2022. 36 The Supplemental Affidavit stated, in pertinent part, that she has
responded to numerous FOIA requests having to do with the University's
relationship to President Biden, including earlier FOIA requests regarding the
Papers.37 On several occasions she inquired of University personnel, including the
University's Budget Director, Lionel Gilibert (“Gilibert”), and the University's Vice
Provost of Libraries and Museums, Trevor Dawes (“Dawes”), whether State funds
had been spent on a variety of matters related to President Biden, including the
Papers.38 The particular communications on which she relied in responding to
Petitioners’ FOIA requests occurred in January 2020.39 In no case did she find that
34 Id. 35 Id. 36 Becnel-Guzzo Supp. Aff., D.I. 30. 37 Id. at ⁋ 5. 38 Id. 39 Id. 10 State funds were spent by the University on any such matter.40 In May 2019, after
receiving a request for documents related to any payments that might have been
made to President Biden, she confirmed with Gilibert that the University had not
made any payments with State funds to President Biden.41 Also in May 2019, shortly
after receiving earlier inquiries for access to the Papers, she inquired of Gilibert and
Dawes whether the University paid any consideration, State funded or otherwise, to
President Biden and confirmed it did not. 42 Finally, she added that, although she did
not review specific documents, the University's auditors annually produce, and make
available to the public, a Statement of State of Delaware Funds Received and
Expended, which she frequently reviews in considering FOIA requests. 43 She stated
that her representations in her Supplemental Affidavit were consistent with that
annual report on the University's receipt and expenditure of State funds.44
On July 27, 2022, Appellants filed their Objection to the University's
Supplemental Affidavit. 45 The University filed its Response to Appellants’
Objection on September 22, 2022. 46 On October 19, 2022, this Court issued its
decision finding that Becnel-Guzzo’s Supplemental Affidavit demonstrated that the
40 Id. 41 Id. at ⁋ 7. 42 Id. at ⁋ 8. 43 Id. at ⁋ 12. 44 Id. 45 Appellants’ Objections, D.I. 31. 46 Appellee’s Resp. D.I. 35. 11 University had met its burden of creating a sufficient record for the Court to confirm
its prior ruling that the requested information was not subject to FOIA. 47 The
Supreme Court affirmed that decision on July 6, 2023.48
Now before the Court is Appellants’ Motion for Relief From Judgment, filed
on March 21, 2024.49 It contends that the revelation that the University paid former
Biden Staffers to review the Papers calls into question the representations in Becnel-
Guzzo’s Supplemental Affidavit upon which the Court relied in its October 19, 2022
decision.50 They ask the Court to vacate that judgment and order the University to
produce all documents in the relevant chapter of the Hur Report, and/or reopen the
record and permit them to take discovery to vet the University’s representations in
the Supplemental Affidavit.51 The University responded in opposition on April 25,
2024, 52 and the Appellants replied on May 9, 2024. 53 The Court held oral argument
on June 13, 2024. 54
On July 18th, the University reported that it had investigated whether the
payments to the former Biden staffers were made with State funds and determined
47 Judicial Watch v. University of Delaware, 2022 WL 10788530 at *3 (Del. Super. Ct. Oct. 19, 2022). 48 Judicial Watch v. University of Delaware, 2023 WL 4377918 (Del. Jul. 6, 2023). 49 Appellants’ Mot. for Relief, D.I. 42. 50 Id. 51 Id. 52 Appellee’s Resp., D.I. 43. 53 Appellants’ Reply, D.I. 48. 54 See, Tr. Hr’g. June 13, 2024, D.I. 53. 12 that no State funds were expended. 55 It supported that representation with the
affidavit of its FOIA Coordinator, Tara Mazur.56 The Court provided the Appellants
with an opportunity to respond, and, on July 31st, they did.57 In their view, the Mazur
affidavit fails to resolve the matter.58
III. THE PARTIES’ CONTENTIONS
The impetus for the Appellants’ motion is the Hur Report, more properly
referred to as the Report of the Special Counsel on the Investigation Into
Unauthorized Removal, Retention, and Disclosure of Classified Documents
Discovered at Locations Including the Penn Biden Center and the Delaware Private
Residence of President Joseph R. Biden, Jr., released by the United States
Department of Justice in February 2024.59 Of significance to the Appellants is the
Report’s disclosure that the University paid two former longtime Biden staffers who
had been asked by President Biden to conduct a pre-gift review and recommend to
him which papers to donate. 60 They view this disclosure as contradicting a
statement in Becnel-Guzzo’s Supplemental Affidavit that no consideration was paid
to President Biden, “State funded or otherwise.”61 They allege that President Biden
55 Letter from William E. Manning, Esquire, D.I. 55. 56 Mazur Aff., D.I. 56. 57 Letter from William E. Green, Jr., D.I. 58. 58 Id. 59 Appellants’ Mot. for Relief, at 1, D.I. 42. 60 Id. at 2. 61 Id. at 3. 13 “directed his former staffers’ work in reviewing and cataloguing the Senate Papers
– and the University paid for it.”62 They contend that those payments “constitute
consideration paid on President Biden’s behalf in connection with the donation of
Senatorial Papers to the University – contrary to the representations in the
Supplemental Affidavit.”63 In other words, President Biden benefitted because he
solicited and directed the former staffers’ work on his behalf, but he did not pay
them, the University did. 64
The Appellants seek relief under Superior Court Civil Rules 60(b)(2) and
(6).65 Under Rule 60(b)(2), the disclosures in the Hur Report are “newly discovered
evidence” that are material, relevant and may change the outcome of the Court’s
October 19, 2022 decision because they directly contradict representations in the
Supplemental Affidavit. 66 Additionally, in light of the University’s obfuscation
regarding its use of funds to acquire the Papers, the Court should take into account
equitable principles and exercise is discretion under Rule 60(b)(6) to vacate the
judgment and/or open the record to allow the Appellants to take discovery.67
62 Id. 63 Id. 64 Id. at 3-4. 65 Id. at 4-6. 66 Id. at 4-5. 67 Id. at 6. 14 The University opposes the motion.68 It finds nothing in the Hur Report that
is at odds with the Supplemental Affidavit.69 Nor is there anything in the Hur Report
to suggest that the former Biden staffers were paid with State funds.70 Further, the
University distinguishes payments to third parties, even former Biden staffers, from
payments to President Biden himself. 71 For those reasons, the University contends,
there is no ‘“newly discovered evidence”’ that is ‘“so material and relevant that it
will probably change the result outcome”’ without being ‘“merely cumulative or
impeaching in character”’ to warrant the ‘“extraordinary circumstances”’ required
for relief under Rule 60(b).72
In reply, the Appellants argue that the key language of the Supplemental
Affidavit that the Hur Report calls into question is the statement that the University
paid no consideration, “State funded or otherwise, to Mr. Biden for the Senate
Papers.”73 In their view, the University’s “indirect payment to President Biden via
payment to his former staffers” renders that statement “plainly unreasonable.”74 In
light of that misleading statement, the “newly discovered evidence” of the Hur
68 Appellee’s Resp., D.I. 43. 69 Id. at 1. 70 Id. at 5. 71 Id. 72 Id. at 5-6. 73 Appellant’s Reply, at 4, D.I. 48. 74 Id. 15 Report, and the extraordinary circumstances present here, relief is appropriate under
Rules 60(b)(2) and (6). 75
Subsequent to oral argument the University wrote to the Court. It advised the
Court that, in an effort to resolve what it believed to be the only remaining arguably
unresolved issue, its FOIA Coordinator, Tara Mazur, investigated whether any
documents related to the expenditure of State funds existed in connection to the
payment to the former Biden staffers.76 She submitted an affidavit in which she
stated that she, “inquired of the University’s Budget Director, Lionel Gilibert as well
as Aimee Turner, Vice President, Finance & Treasurer. They or their teams
identified electronically stored payments and found no evidence that the Payments
had been made with State funds.”77
The Appellants responded on July 31, 2024. 78 They dispute that the inquiry
undertaken by Mazur is the appropriate inquiry.79 They contend that the matter turns
on whether the findings of the Hur Report undermine the credibility of the
University’s representations upon which the Court previously relied and whether the
University met its burden of proof in denying their FOIA requests.80 They further
75 Id. at 4-5. 76 Letter from William E. Manning, Esquire, D.I. 55. 77 Mazur Aff., at ⁋ 3, D.I. 56. 78 Letter from William E. Green, Esquire, D. I. 58. 79 Id. 80 Id. 16 contend that if the Mazur affidavit is treated as a FOIA response, it does not satisfy
the University’s burden because it does not identify specifically what the
“electronically stored records of the Payment” that were reviewed were. 81 In short,
the affidavit contains an insufficient description of the reviewed records to pass
muster.82
IV. STANDARD OF REVIEW
Superior Court Civil Rule 60(b) states in pertinent part:
(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment . . .“
A. Rule 60(b)(2) Standard.
The Court may grant a petitioner relief from a judgment under Rule 60(b)(2) if it
81 Id. 82 Id. 17 finds that newly discovered evidence – with due diligence – could not have been
discovered in time for a new trial to be requested under rule 59(b). 83 Under Rule
60(b)(2), “newly discovered evidence” is defined as evidence that has been in
existence and hidden at the time of the judgment.84
There are five predicates under Rule 60(b)(2) that must be satisfied before the
judgment may be altered, amended, or vacated: (1) newly discovered evidence has
come to the proponent's knowledge since the trial; (2) that could not, in the exercise
of reasonable diligence, have been discovered for use at trial; (3) that is so material
and relevant that it will probably change the result if a new trial is granted; (4) that
is not merely cumulative or impeaching in character; and (5) that is reasonably
possible will be produced at trial. 85 The party moving for relief from judgment then
has the burden of establishing each of the five elements before the court may rule.86
B. Rule 60(b)(6) Standard.
Delaware long ago adopted an “extraordinary circumstances” standard for
motions under Rule 60(b)(6).87 Relief sought under 60(b)(6) covers “any other
83 Kaiser-Frazer Corp. v. Eaton, 101 A.2d 345 (Del. Super. Ct. 1953). 84 Bachtle v. Bachtle, 494 A.2d 1253, 1255 (Del. 1985) (citing Ryan v. United States Lines Co., 303 F.2d 430, 434 (2d Cir., 1962)). 85 Albu Trading, Inc. v. Allen Family Foods, Inc., 2002 WL 531203 at *3 (Del. Super. Ct. Apr. 4, 2002), aff’d. 2002 WL 31681803 (Del. Nov. 2002). 86 Id. 87 Jewell v. Division of Social Services, 401 A.2d 88, 90 Del. 1979). 18 reason” that justifies relief. 88 It is an “independent ground for relief, with a different
standard to be applied than under [Rule 60(b)’s] other subdivisions.”89
“Extraordinary circumstances” allow courts to relieve a judgment “whenever such
action is appropriate to accomplish justice.” 90
V. DISCUSSION
A. Rule 60(b)(2).
The Court first addresses the Appellants’ efforts under Rule 60(b)(2). The
Hur Report does not identify precisely when the payments were made. 91 It does
state, however, that the former staffers were asked to begin their review in the spring
of 2011, and the University received the Papers between 2011 and 2015. 92 Thus,
the Court finds it reasonable to conclude that the staffers were paid well before this
litigation began in 2020. One of the staffers disclosed the payments by the
University in an interview on March 14, 2023.93 This date is after this Court entered
its judgment in October 2022. Accordingly, the Court finds that the information
regarding the University’s payments to the two former Biden staffers amounts to
newly discovered evidence that has come to the Appellants’ knowledge since the
88 Id. 89 Id. 90 Id. (quoting Klapprott v. United States, 335 U.S. 601, 615 (1949). 91 See, Appellants’ Mot. for Relief, Ex. 1, Her Report, Ch. 15, at n. 1247, D.I. 48. 92 Id. at 313. 93 Id. at n. 1247. 19 Court entered judgment and that the information could not have been discovered for
use prior to then. The Court further finds that it is reasonably possible that the
Appellants would be able to produce the information at any future trial or hearing.
Of course, the foregoing simply is preamble. The crux of the parties dispute
is whether the information is so material and relevant that it would likely change the
outcome and is not merely cumulative or impeaching. In order to make this
determination, it is helpful to review the affidavit upon which the Court based its
earlier decision. The affiant, Becnel-Guzzo, reviewed her experience responding to
numerous previous FOIA requests involving the Papers,94 and her sources of
information, including the people to whom she spoke and the documents she
reviewed.95 She concluded that “no State funds were spent by the University in any
way that related to Mr. Biden or the Senate Papers.” 96 That statement is
comprehensive and would seem to include any payments to the former Biden
staffers.
The Appellants seize on a statement earlier in the affidavit at Paragraph 8
where Becnel-Guzzo states:
In May 2019, shortly after receiving earlier inquiries for access to the Biden Senate Papers, I inquired of Mr. Gilibert, the University’s Budget Director, and Vice Provost Dawes, whether the University paid any
94 Becnel-Guzzo Supp. Aff. at 3, D.I. 30. 95 Id. at 3-5. 96 Id. at 5. 20 consideration, State funded or otherwise, to Mr. Biden for the Senate Papers. I confirmed it did not.97
In the Appellants view, the “consideration, State funded or otherwise, to Mr. Biden”
language should be interpreted as encompassing the “consideration paid on President
Biden’s behalf” when the University paid for the review of his Papers conducted by
his former staffers. 98 As a result, the failure of Becnel-Guzzo to address these
payments “on behalf of” President Biden calls into question the credibility of her
affidavit.
The Appellants invest the expression “consideration, State funded or
otherwise, to Mr. Biden” with more significance than it credibly can sustain. Their
argument assumes that Becnel-Guzzo agreed with them that the payments were
made on President Biden’s behalf. There is no reason to believe that Becnel-Guzzo
subscribed to that legal conclusion. In fact, it is controverted by the University. Nor,
is there any reason to believe that she intended to conceal the payments, or to hide
their source. Even if documents existed showing that the University paid President
Biden directly with State funds for the pre-donation review, it is not clear that
circumstance would require disclosure of the Papers themselves. The Court
perceives no reason for Becnel-Guzzo to mislead in her Supplemental Affidavit. All
of which leads the Court to conclude that the newly discovered evidence is not “so
97 Id. at 4. 98 Appellants’ Mot. for Relief, at 3, D.I. 42. 21 material and relevant that it would probably change the result.” At best, it is only
merely arguably impeaching.
B. Rule 60(b)(6).
In order to warrant relief under Rule 60(b)(6), extraordinary circumstances
must exist such that granting relief will be in the interests of justice. Some
perspective is in order.
The Judicial Watch Request asked, in short, for “all records and
communications from the University about the proposed release of the Papers, as
well as any communications between the University and either President Biden or
anyone acting on his behalf.” 99 The broader DCNF Request sought “not only
communications between the University and President Biden and his staff, but also
visitor logs from the department where the Papers are housed, the Papers themselves,
and the Agreement under which the Papers were donated to the University.” 100 Were
the University fully subject to FOIA, honoring these requests would be consistent
with FOIA’s Declaration of Policy. But, the University is substantially exempt.
Years of clarifying litigation have brought the Appellants to the point where they
acknowledge that all they are entitled to under FOIA are documents related to the
expenditure of State funds in connection with the payments to former Biden staffers
99 Id. at 1000. 100 Id. 22 for their pre-donation document review.101
The University’s willingness to respond to FOIA requests directed
specifically at the payments to the staffers provides the Appellants with a wholly
adequate alternative remedy apart from the extraordinary relief of vacating a settled
judgment. There simply is no case to be made now that extraordinary circumstances
exist to require vacating the judgment in order to vindicate the interests of justice.
As set out below, this conclusion is reinforced by the results of the University’s
additional investigation into the sources of funds paid to the former Biden staffers.
C. The Mazur Affidavit.
At argument, the Court sought to clarify with Appellants’ counsel where
reopening the judgment and/or permitting limited discovery might lead.
THE COURT: Well, let me see if I can’t drill down on what you think the essential question here is. So we’re talking now, after the case has been up and down to the Supreme Court and whatnot, aren’t we about the narrow question of whether there are documents which relate to the expenditure of state funds?
MR. GREEN: Well, realistically, Your Honor, here, we’re here today on the question of whether the supplemental affidavit actually satisfies the University’s burden of proof.
101 Given their requests, even if there were such documents that revealed that the former staffers were paid with State funds and even if those payments were intended to benefit President Biden, the Court suspects the Appellants would view their original goals as unfulfilled.
23 THE COURT: Right, right, but on that issue?
MR, GREEN: Oh, certainly, certainly. Well, on that issue --
THE COURT: And then - - and then, I guess the question is - - or you tell me whether you think the question is whether these arrangements, whatever they were or documents that reflect the arrangements with the former staffers who curated the documents and were paid by the University, whether documents about those arrangements relate to the expenditure of State funds.
MR. GREEN: Well, the discrete answer to the question of whether documents related to the expenditure of State funds, that’s unclear because we don’t have those records.
THE COURT: Right, but isn’t that the question, ultimately? That if they do not relate to the payment of State funds. However we learn about that, you know, does that end the question?
MR. GREEN: Well, if we are jumping forward to the ultimate relief sought in the FOIA, then the answer would be yes.
THE COURT: Yes. But you are asking for a way to find that out.
MR. GREEN: Yes. No, that’s precisely correct.102
Later, the Court returned to the subject in the context of what type of response
from the University might satisfy the Appellants.
THE COURT: Well, the statement is, obviously, an under-oath statement to the effect that we have looked at
102 Tr. Hr’g., June 13, 2024, at 4:8-6:1, D.I. 53. 24 the payment to the former Biden staffers and searched for any documents pertaining to that payment, and to the extent we found any documents, none of them involved or related to the expenditure of State funds.
MR. GREEN: Well, that would bring this case a lot further than it is, Your Honor. That’s not something the University has ever agreed to do.
THE COURT: Well, I understand that, but if you were confronted with that, where would you be?
MR. GREEN: Well, if we had been confronted with that --
THE COURT: In other words, if the University had responded and came back with that, where would that leave you?
MR. GREEN: I think that may have settled the issue, Your Honor, depending on the context of the statement. 103
If they were permitted to take discovery, counsel for the Appellants
acknowledged that discovery, whether it be depositions or interrogatories, would be
limited to documents related to the expenditure of State funds for the former staffers.
THE COURT: Because then I find out, let’s say - - you know, that could lead to a dead end for you, you know, or it could lead to something. And, at this point, if we’re kind of narrowly circumscribed to those payments to the former staffers of - - that’s about what you would get if you were successful, isn’t it? Any documents that related to the expenditure of State funds in connection with those payments?
Mr. Green: Yes. Under the statute, that’s what we’d be
103 Id. at 12:5-13:2. 25 entitled to.104
In his July 31st letter to the Court, counsel for the Appellants argues that the
real question for the Court is whether confidence in the Becnel-Guzzo Supplemental
Affidavit, upon which the Court relied, has been sufficiently undermined by the Hur
Report’s findings that the Court can no longer be confident that the University met
its burned in justifying its denial of the Appellants’ FOIA requests.105 But, the
Court’s colloquy with counsel was intended to go beyond that question. The Court
was interested in understanding where granting the motion would lead. Appellants’
counsel acknowledged that, if the Court reopened the judgment and/or allowed the
Appellants to conduct limited discovery, all the Appellants would be entitled to
under the statute were any documents relating to the expenditure of state funds in
connection with the payments.
The Court was exploring whether the matter could be put to an end if granting
the motion led only to a point where the University responded that no State funds
were expended after a specific investigation of the sourcing of the payments to the
former Biden staffers. In other words, would such a response mean that information
from the Hur Report would have been insufficiently relevant and material to change
the probable result under Rule 60(b)(2)? And, would such a response demonstrate
104 Id. at 17:19-18:6. 105 Letter from William E. Green, Esquire, D.I. 58. 26 that no extraordinary circumstances exist requiring the Court to vacate the judgment
in order to vindicate the interests of justice under Rule 60(b)(6)? The Mazur
affidavit, whether it is sufficient as a stand-alone FOIA response, is certainly
additional evidence that supports the Court’s conclusion that the answer to each of
those questions is “yes.”
It is unsurprising that no documents exist related to the expenditure of State
funds in connection with the payments. In fact, it is to be expected given the
Supreme Court’s determination that the contents of the documents that the
Appellants seek must themselves relate to the expenditure of public funds.106 There
is scant reason to expect that invoices for services rendered or checks paying those
invoice would discuss the source of the funds used to make those payments.107
Similarly, any other documents related to paying for the pre-donation review are
unlikely to make distinctions between State funds and University funds. The Court
perceives no reason for making that distinction. Certainly, the Appellants have
offered no convincing reason for the parties to have done so.
The Court is mindful that the Appellants bear no burden with respect to their
original FOIA request. Nonetheless, in connection with their challenge to the
106 Judicial Watch, 267 A.3d at 1005-06. 107 There is no reason to believe that the Papers themselves, coming from President Biden’s time in the Senate, would contain any discussion of the expenditure of State of Delaware funds. 27 credibility of the Becnel-Guzzo Supplemental Affidavit in this motion, the Court is
confident that the Appellants would have brought to the Court’s attention any
information in their possession suggestion the expenditure of State funds was
address in the documents related to the payments. No such information has been
forthcoming.
VI. CONCLUSION
As explained above, the Court finds that the newly discovered evidence that
former Biden staffers were paid by the University to conduct pre-donation reviews
is not so material and relevant that it would probably change the result of the Court’s
October 19, 2022 decision that the University had met its burden of justifying its
denial of the Appellants’ FOIA requests. The Court further finds that the newly
discovered evidence does not establish such extraordinary circumstances so as to
require relieving the Appellants of the Court’s October 19, 2022 judgment in the
interest of justice. Accordingly, the Petitioners’ Motion for Relief from Judgment
is DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton Ferris W. Wharton, J.