Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

DOVER, Del. — A Delaware judge has refused to vacate a ruling denying a conservative media outlet and an activist group access to records related to President Joe Biden’s gift of his Senate papers to the University of Delaware.

Judicial Watch and the Daily Caller News Foundation sought to set aside a 2022 court ruling and reopen a FOIA lawsuit following the release of Special Counsel Robert Hur’s report about Biden’s handling of classified documents.

Hur’s report found evidence that Biden willfully retained highly classified information when he was a private citizen, but it concluded that criminal charges were not warranted. The documents in question were recovered at the Penn Biden Center in Washington, Biden’s Delaware home and in his Senate papers at the University of Delaware.

Judicial Watch and the Daily Caller maintained that the Hur report contradicted representations by university officials that they adequately searched for records in response to their 2020 FOIA requests, and that no consideration had been paid to Biden in connection with his Senate papers.

Hur found that Biden had asked two former longtime Senate staffers to review boxes of his papers being stored by the university, and that the staffers were paid by the university to perform the review and recommend which papers to donate.

The discovery that the university had stored the papers for Biden at no cost and had paid the two former Biden staffers presented a potential new avenue for the plaintiffs to gain access to the papers. That’s because the university is largely exempt from Delaware’s Freedom of Information Act. The primary exception is that university documents relating to the expenditure of “public funds” are considered public records. The law defines public funds as funds derived from the state or any local government in Delaware.

“The university is treated specially under FOIA, as you know,” university attorney William Manning reminded Superior Court Judge Ferris Wharton at a June hearing.

Wharton scheduled the hearing after Judicial Watch and The Daily Caller argued that the case should be reopened to determine whether the university had in fact used state funds in connection with the Biden papers. They also sought to force the university to produce all documents, including agreements and emails, cited in Hur’s findings regarding the university.

In a ruling issued Monday, the judge denied the request.

Wharton noted that in a 2021 ruling, which was upheld by Delaware’s Supreme Court, another Superior Court judge had concluded that, when applying Delaware’s FOIA to the university, documents relating to the expenditure of public funds are limited to documents showing how the university itself spent public funds. That means documents that are created by the university using public funds can still be kept secret, unless they give an actual account of university expenditures.

Wharton also noted that, after the June court hearing, the university’s FOIA coordinator submitted an affidavit asserting that payments to the former Biden staffers were not made with state funds.

“The only outstanding question has been answered,” Wharton wrote, adding that it was not surprising that no documents related to the expenditure of public funds exist.

“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,” he wrote.