Judicial Watch v. University of Delaware

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.

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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.
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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.
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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.

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