PRINT VERSION: Attorney General Opinion 25-IB21

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

 Attorney General Opinion No. 25-IBXX 

April 7, 2025

VIA EMAIL

Tymothy Moyer

moyerty@gmail.com 

RE:     FOIA Petition Regarding the University of Delaware

Dear Mr. Moyer:

We write in response to your correspondence, alleging that the University of Delaware violated Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10008 (“FOIA”).  We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 of whether a violation of FOIA has occurred or is about to occur.  As discussed more fully herein, we determine that the University did not violate FOIA as alleged in the Petition.

BACKGROUND

On March 3, 2025, you submitted a FOIA request to the University seeking the following records:

1. All email communications, text messages, memoranda, notes, and other written or electronic communications between the University of Delaware’s Office of Equity and Inclusion (specifically including but not limited to Dawn Floyd, Title IX Coordinator, and her representatives) and the Delaware Department of Justice (specifically including but not limited to Prosecutor & Attorney Claudia DeBonte) regarding the Criminal Charges & Title IX case involving Tymothy Moyer and Michael Uzu (Case Nos. 2023427502 and 2023468901) from February 3, 2024, to the present.
2. All internal communications within the Office of Equity and Inclusion discussing the decision-making process regarding jurisdiction over the cross-complaint filed by Michael Uzu against Tymothy Moyer, particularly those addressing the determination to maintain jurisdiction over a non-affiliate of the University.
3. All communications between the University of Delaware and any federal immigration authorities (including ICE, SEVIS, or Department of Homeland Security) regarding Michael Uzu from February 3, 2024, to the present, including any SEVIS reporting forms submitted regarding his arrest, indictment, or other legal proceedings.
4. Minutes or notes from any meetings between University of Delaware representatives and the Delaware Department of Justice regarding the criminal case against Michael Uzu.
5. Communications between the University of Delaware’s Office of Equity and Inclusion and Michael Uzu’s academic department heads & faculty (Including but not limited to, Lars Gundlach, of the Department of Chemistry) regarding his case, status, or disciplinary proceedings.
6. Any written policies, guidance documents, or directives provided to the Title IX office regarding jurisdictional determinations in cases where one party is not affiliated with the university.
7. All communications between the University’s General Counsel’s office and the Office of Equity and Inclusion regarding Case Nos. 2023427502 and 2023468901, particularly those addressing jurisdictional issues.
8. Documentation of any federal funding received by the University departments involved in these cases during the relevant time period.
9. Records of any trainings provided to Title IX staff between February 2023 and present regarding the handling of cases involving international students.[1]

The University denied access to these records, as only University documents that relate to the expenditure of public funds are public records under FOIA, and these records you seek do not relate to the expenditure of public funds, which are defined as funds derived from the State or any political division of the State.  This Petition followed.

In the Petition, you argue that the University’s categorial denial of your multi-part request is improper, asserting that every item must be evaluated and addressed separately in the University’s response.  You also contend that the University incorrectly asserted that your request for federal funding documentation does not seek public records, because the term “public funds” includes federal funding, and the University’s federal and state funding are commingled through integrated budgetary systems.  You further state that “federal grants supporting the University, such as those from NSF and other federal agencies, require institutional compliance with Title IX as a condition of funding,” and “[t]hese grants create a direct nexus between federal funding and Title IX enforcement activities.”[2]  You believe that allowing this exception for federal funding would result in shielding substantial federal appropriations from public scrutiny.  In addition, you allege that the University violated FOIA by failing to include a Vaughn index and by failing to review records and redact only those portions that fall within an enumerated exception and to produce the remaining public information. You also requested the metadata for any records withheld or redacted, and you assert that even if the University had legitimate grounds to withhold a record, it was required to produce the metadata pursuant to 29 Del. C. § 10003(k).  Finally, you argue that beyond the statutory violations, there is a compelling public interest in producing these records.  You request that this Office file suit on your behalf if a violation is found and the University fails to comply with this Office’s determination.

The University, through its legal counsel, replied to the Petition (“Response”).  The University asserts that as your request does not seek University records subject to FOIA on its face, no affidavit is required in this instance.  The University argues that the request “makes no inquiry, directly or indirectly, about the University’s expenditure of public funds.”[3]  The University alleges that your Petition is based on a misreading of the term “public funds” to include federal funding, when it does not.  The University asserts that your argument that federal funding requiring institutional compliance with Title IX creates a nexus such that those University records would be subject to FOIA, is similarly without merit.  Because the requested records are not public records subject to FOIA, the University contends its denial was proper.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records.^[4]  The public body carries the burden of proof to justify its denial of access to its records.^[5]  In certain circumstances, a sworn affidavit may be required to meet that burden.^[6]

This Petition’s primary claim is that the University failed to produce the responsive public records.  All records of the University are not public records subject to disclosure under FOIA; only University records “relating to the expenditure of public funds” are considered public records.[7]  The Supreme Court of Delaware has determined 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.”[8]  Public funds are defined as “those funds derived from the State or any political subdivision of the State.”[9]  In this case, the content of the records you seek do not, on their face, relate to the expenditure of the funds of the State or any political subdivision of the State.  Thus, we determine that the requested records are not public records pursuant to FOIA.

In addition to this allegation, this Petition also raises several other claims regarding the University’s response.  You allege that the University’s response must provide a separate response to each item in your request. However, the FOIA statute does not prohibit public bodies from consolidating duplicative responses to multiple items in a single response, as was done here.  You argue that the University must produce a Vaughn index and metadata of the withheld documents; however, Section 10003(h)(2) expressly states that public bodies are not “required to provide an index, or any other compilation, as to each record or part of a record denied.”[10]  Thus, the University was not required to produce a Vaughn index or to compile the metadata for every withheld document.  Finally, the contention that the records had to be redacted and produced with the segregable public information is inapplicable, as the requested records are not public records under FOIA.  As such, we find that the University did not violate FOIA in these respects. 

CONCLUSION

For the reasons set forth above, we conclude that the University did not violate FOIA as alleged in the Petition.

Very truly yours,

/s/ Dorey L. Cole

__________________________

Dorey L. Cole

Deputy Attorney General

Approved:

/s/ Patricia A. Davis

__________________________

Patricia A. Davis

State Solicitor

cc:       Patricia C. Shea, Associate General Counsel & Chief Privacy Officer

[1]           Petition.

[2]           Id.

[3]           Response.

[4]           29 Del. C. § 10003(a).

[5]           29 Del. C. § 10005(c).

[6]           Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

[7]           29 Del. C. § 10002(l).

[8]           Judicial Watch, 267 A.3d at 1006 (emphasis in original).

[9]           29 Del. C. § 10002(n).

[10]         Vanella v. Duran, 2024 WL 5201305, at *5 (Del. Super. Dec. 23, 2024) (stating that 29 Del. C. § 10003(h)(2) statutorily prohibits the use of a Vaughn index).

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