NLPC Files FOIA for Biden Documents at University of Delaware

Today NLPC filed a Freedom of Information Act (FOIA) Request with the University of Delaware seeking all documents related to the transfer, curating, and access to the Senatorial Papers of Joe Biden to the university library and to order a search of those documents by the Board of Trustees for any reference to Tara Reade, who has accused Mr. Biden of sexual assault in 1993 when she was employed by Biden.  Both the Washington Post and the New York Times have called for such a search of Biden’s papers.

The FOIA request also calls for the release of all visitor logs to the university’s library by Biden’s campaign or personal aides who have searched the files as has been reported.  NLPC also requests that John Cochran, the Chairman of the Board of Trustees, be recused from voting on the search and disposition of the requested documents as required by the Board’s Bylaws because of Mr. Cochran’s prior financial relationship with Mr. Biden as well as the recusal of seven other trustees because of their campaign contributions to Mr. Biden.

“If Joe Biden has nothing to hide, he should welcome the search and release of the records requested,” said Peter Flaherty, Chairman of the NLPC.  “After all, Biden has requested the National Archives and the U.S. Senate to search and release such records,” he added.

“The public interest demands that the University of Delaware release all the requested records in the interest of transparency,” said Paul Kamenar, counsel for NLPC. “And Board members who have contributed to Biden’s campaign must recuse themselves from any decision in this matter.”

Here is the complete text of the FOIA addressed to John Cochran, Chair of the University of Delaware Board of Trustees; Dennis Assanis, President of the Univeristy of Delaware; and Jennifer Becnel-Guzzo, Associate Vice President and Deputy General Counsel.

May 4, 2020

Re: FREEDOM OF INFORMATION ACT REQUEST BY THE NATIONAL LEGAL AND POLICY CENTER AND JOANNE BUTLER SEEKING THE RELEASE OF ALL DOCUMENTS RELATING TO THE RECEIPT, CURATING, AND  DISPOSITION OF THE BIDEN SENATORIAL PAPERS AND REQUEST THAT A SPECIAL MEETING OF THE BOARD OF TRUSTEES BE CONVENED (1) TO AUTHORIZE RELEASE OF ANY WITHHELD FOIA DOCUMENTS  AND (2) TO CONDUCT A LIMITED SEARCH OF THE BIDEN PAPERS

Dear Messrs. Cochran, Assanis and Ms. Becnel-Guzzo:

1. Pursuant to Delaware’s Freedom of Information Act (FOIA), 29 Del. C. 10001, et seq., the National Legal and Policy Center (NLPC) and Joanne Butler, through their undersigned counsel, request that the University of Delaware release all documents, whether in hard copy or electronic format, including any minutes of the Board of Trustees meetings, that relate to any agreement or amendments thereto and any other documents, including the expenditure of public funds, regarding the receipt, curating, and access to (including any visitor logs) the Senatorial Papers of Joe Biden given to the university as a gift by then-Vice President Biden.

2. NLPC and Ms. Butler also request the President of the University of Delaware to exercise his authority as “executive agent” of the Board of Trustees and “chief executive of the University” to exercise his “general supervision of the affairs of the University” pursuant to Section 3.3.2.2 of the Bylaws of the University of Delaware and order the release of all records requested that otherwise may be withheld but are not required to be withheld under FOIA.

3. NLPC and Ms. Butler further request that John Cochran, as the Chair of the Board of Trustees, exercise his authority under Section 1.3.2  of the Bylaws of the University of Delaware to convene a special meeting of the Board of Trustees to (i) authorize the release of all documents requested in this FOIA that may otherwise be withheld but are not required to be withheld under FOIA and (ii) to allow limited access to the Biden papers for the year 1993 by an independent researcher that contains the name of former Biden staff member, Tara Reade, who has accused Biden of sexually assaulting her in 1993 before she was either fired or resigned her staff position with his Senate office. According to the Charter of the University of Delaware, “The Board of Trustees shall have the entire control and management of the affairs of the University.”  14 Del. C. Section 5106(a) (emphasis added).  

4.  NLPC further requests that any Trustee who has made campaign contributions to Biden’s current or previous political campaigns or has engaged in any financial transaction with him as has been widely reported as described herein, be recused from any such meeting or any future meetings or decisions regarding the Biden papers. See Section 1.4.2 of the Bylaws on conflicts of interest and Section 1.4.6:

 Recusal. Trustees shall avoid participating in any University decision in which, by any reasonable standard, institutional or other connections could influence the Trustee’s independent judgment (emphasis added).

NLPC. Founded in 1991, NLPC is a non-profit public interest organization based in the Washington, D.C. area that promotes ethics in public life and government and corporate accountability through research, investigation, education, and legal action.  See www.nlpc.org.  NLPC has filed other FOIA requests and lawsuits on other matters of public interest as well as complaints with the Federal Election Commission and Congressional Ethics Committees for violations of election law and ethics rules as part of its Government Integrity Project.  Joanne Butler is a retired federal employee and resident and citizen of Delaware since 2009. The requesters believe that the release of the documents requested are in the public interest.  NLPC will post all documents released on its website and distribute them to both the Delaware and national press.

Background of the transfer of Biden’s Senatorial Papers

On or about 2011, Joe Biden, then-Vice-President of the United States, made a gift to the University of Delaware Library of his Senatorial papers covering his 37-year Senate career from 1973-2009.  In June 2012, “[t]he documents were moved to the [university] library from the National Archives and Hart Senate Office Building in Washington D.C.”[1]

According to a Washington Post article in July 2019:

The collection of documents that Biden donated to his alma mater fills 1,875 boxes and also includes 415 gigabytes of electronic records. It includes committee reports, drafts of legislation and correspondence.

****

Starting in 2011 and for years after, the university had described the terms of the agreement as keeping the papers sealed “for two years after Biden retires from public office.” But this year, on the day before Biden announced his presidential campaign, the university changed the way that it described those terms.

Instead of citing his departure from “public office,” the university said the documents would not be made public until two years after Biden “retires from public life” or after Dec. 31, 2019, whichever is later. It did not define what is considered “public life.”

Washington Post, Matt Viser, Joe Biden’s Senate records could answer questions about his past actions — but they’re being kept secret (July 11, 2019) (emphasis added).

Thus, the original release date of the papers was January 20, 2019, two years after he left the office of the Vice-President.  However, Biden announced his run for the presidency on April 25, 2019,[2] three months after the papers should have been released.  On the day before he announced his run, the University changed the release date until two years after he “retires from public life” or after December 31, 2019, whichever is later.  Obviously, the University was notified by Biden or his representatives on or about January 21, 2019, well before his announcement in April, to continue to withhold the papers’ release per the original agreement and agreed to the new terms, which are open-ended.  Thus, should Biden lose the election this November, he may still remain “in public life” but not in “public office” and the records will continue to be sealed. 

But to add to the confusion surrounding the release of these papers, which can be cleared up by the release of the requested records, Mr. Biden said in an interview on May 1, 2020, as to when the University told him that the papers would be ready to be released:

Well, they weren’t supposed to be revealed. I gave them to the university, and the university said it’s going to take them time to go through all the boxes. They said that wouldn’t be before 2020 that that occurred, or 2021, I can’t remember the year they said.[3]

New York Times, Full Transcript: Joe Biden Addresses Tara Reade Allegations on ‘Morning Joe’ (May 1, 2020) (emphasis added).

Search of the Biden papers

In light of recent allegations by Tara Reade that she was sexually assaulted by Senator Biden in a Capitol Building in 1993, calls have been made that the University of Delaware and Mr. Biden should allow inspection of those documents to see if any relate to Tara Reade that might shed light on her allegations.  Surely, the early records of his Senate tenure in 1993 should have be catalogued by now and easily searchable on the electronic records turned over by Mr. Biden.

As the Washington Post recently editorialized:

But that is no excuse for not searching. One place to start is the records covering Mr. Biden’s 36-year Senate career, donated to the University of Delaware in 2012 and slated for release to the public two years after Mr. Biden “retires from public life.” These could contain confirmation of any complaint Ms. Reade made, either through official congressional channels or to the three other employees she claims she informed not specifically of the alleged assault but more generally of harassment. They could also contain nothing of the sort. Insisting on an inventory doesn’t mean one believes Ms. Reade or doesn’t believe her. It signals only a desire for the public to know all that’s able to be known, which ought to be in everyone’s interest.

The New York Times similarly called for the search and release of any documents that relate to Tara Reade:

[Biden] called on the archives “to identify any record of the complaint she alleges she filed and make available to the press any such document.” Later on Friday, after the National Archives said it did not have personnel documents, Mr. Biden asked the secretary of the Senate to direct a more extensive search, also asking for “any and all other documents in the records that relate to the allegation.”

This is a start, but it does not go far enough. Any serious inquiry must include the trove of records from Mr. Biden’s Senate career that he donated to the University of Delaware in 2012. . . . There are growing calls for Mr. Biden to make those records available to see if they contain any mention of Ms. Reade or perhaps others who raised similar complaints about his behavior.

New York Times, Investigate Tara Reade’s Allegations: Americans deserve to know more about a sexual assault accusation against the likely Democratic Party nominee (May 1, 2020) (emphasis added).

In a television interview on Friday, May 1, 2020, with Mika Brzezenski on “Morning Joe”, Mr. Biden denied the sexual assault allegations and that any complaint would be a “personnel record” in the National Archives:

But look, a record like this can only be one place. It would not be at the University of Delaware. My archives do not contain personal files. My archives contain documents — and when I say personal, personnel files. They don’t contain any personnel files. They are public records, my speeches, my papers, my position papers. And if that document exists, it would be stored in the National Archives, where documents from the office she claims to have filed her complaint with are stored. That’s where they are stored. The Senate controls those archives, so I’m asking the secretary of the Senate today to identify whether any such document exists. If it does, make it public.

New York Times, Full Transcript: Joe Biden Addresses Tara Reade Allegations on ‘Morning Joe’ (May 1, 2020)

On that same day, the National Archives informed Mr. Biden that no such records are kept there, whereupon Mr. Biden requested the Senate also on May 1 to locate  such complaint and “all documents” related to any complaint.[4]

But since Mr. Biden is asking that any records relating to Tara Reade be searched and disclosed by the National Archives and the Senate, and considering the records in the possession of the University Library originated from the National Archives and the Senate, any release of the records requested by this FOIA would be in accordance with Mr. Biden’s wishes.  His only concern about the search and releasing any of the papers relates to documents on various policy issues, but when pressed, he only offered an easily resolvable logistical reason for not allowing a search of those records:

MB: The point I’m trying to make is you are approving, and actually calling for a search of the National Archives records of anything pertaining to Tara Reade. I’m asking, why not do the same in the University of Delaware records, which have raised questions because they were supposed to be revealed to the public and then they were sealed for a longer period of time. Why not do it for both sets of records?

JB: Because the material in the University of Delaware has no personnel files. It has — but it does have a lot of confidential conversations that I had with the president about a particular issue,[5] that I had with the heads of state of other places, that — that would not be something that would be revealed while I was in public office or while I was seeking public office. It just stands to reason. To the best of my knowledge, no one else has done that either.

MB: I’m just talking about her name, not anybody else in those records — a search for that. Nothing classified with the president or anybody else. I’m just asking, why not do a search for Tara Reade’s name in the University of Delaware records?

JB: Look, I mean, who does that search?

MB: The University of Delaware. Perhaps you set up a commission that can do it. I don’t know, whatever is the fairest way to create the most transparency.

Even if the papers do not contain any complaint that Ms. Reade allegedly filed, there may be staff notes referring to her tenure that may relate to her assignments and her leaving the office that may provide corroborating evidence of the incident. Contrary to what Mr. Biden said, he certainly does not know whether any such documents exist in his papers. 

On Sunday, May 3, 2020, DNC Chair Tom Perez came to Mr. Biden’s defense by telling, ABC’s Martha Raddatz that “this is like the Hillary emails, because there was nothing there.” [6] The comparison to Hillary Clinton’s emails appears to have been a Freudian slip because 33,000 of Hillary’s emails were deleted.[7]  Perez also misleadingly said, “The University of Delaware and any university that takes somebody’s documents, they’re taking their policy documents. They’re taking their speeches. They’re not taking their personnel records.”  Id. (emphasis added). Even if “personnel records” as such are not in the papers (which neither Mr. Biden nor Mr. Perez know for sure), such records do contain staff notes which may reflect on the work of staff members, including Tara Reade.[8]

As for whether Biden’s campaign or personal staff had recently searched his personal papers at the University and may have retrieved anything relating to Tara Reade or otherwise are political damaging, this request also seeks documents relating to logs of such persons signing in to review the collection. There have been reports that until the library was closed in March due to the novel coronavirus, such visits may have been made.  See New York Post, Biden campaign operatives accessed secret Senate records at Delaware library, report says (May 1, 2020).

            Finally, NLPC and Ms. Butler request that should any of the documents requested be withheld as a matter of discretion since FOIA does not preclude any of the documents from being released, that the Board of Trustees convene a special meeting as permitted by its by laws to (1) require the release of the requested records, and (2) to approve an independent search of Biden’s papers for 1993, the year in question, for any records relating to Tara Reade and to release them. 

            Nevertheless, any Trustee who has had any financial relationship or donated

money to any of Biden’s campaigns should be recused from making any decision in such special Board meeting.  It has been widely reported that John Cochran, the Chair of the Board, and other trustees do have such conflicts that would require recusal.

The current chairman of the board at the University of Delaware, John Cochran, is a longtime Biden donor and former CEO of MBNA.

In a January 1998 article entitled “The Senator from MBNA,” columnist Byron York recounted how Cochran, then MBNA’s vice chairman, paid “top dollar” for Biden’s home in February 1996, just prior to his Senate re-election bid, and that “MBNA gave Cochran a lot of money—$330,000—to help with ‘expenses’ related to the move.”

            * * * *                       

[A]t least seven other members of the University of Delaware’s board of trustees have donated to Biden’s political campaigns — including a former Biden senior counsel from the Senate, as well as the state’s governor and other senior officials.

Terri Kelly, the former president and CEO Of W.L. Gore & Associates, has served on the university’s board of trustees since 2014 — and donated the maximum legal amount to Biden in 2019.

Carol Ammon, who has been on the board since 2013, has given more than $10,000 to Biden’s campaign and affiliated PACs, federal election records show.

John Paradee, a lawyer, joined the board in 2018. He has also donated heavily to Biden.

John Carney, the state’s governor and another board member, has also donated more than $1,000 to Biden.

Claire DeMatteis served as counsel to Biden. Since 2001, she has given over $16,000 to Democratic PACs, including Biden’s, called Unite our States.

Chai Gadde, a CEO, has donated thousands to Biden.

William Lafferty, a partner at a Delaware law firm who serves on the board as well, has also given more than $2,500 to Biden’s campaign.

Greg Re, Fox News, University Of Delaware board members, who are keeping Biden’s Senate records secret, have close ties to the former (May 1, 2020).

This latter request for a special meeting of the Trustees and any recusal issues may be easily obviated if Mr. Biden simply gives his assent to such search as he recently did to the U.S. Senate to search for and release such similar documents related to Tara Reade. There is no valid reason why he would refuse to do so, nor object to any of the requested University records in this FOIA request, if he has nothing to hide.

Please respond to this request promptly within 15 business days.  If you have questions regarding this request, please contact the undersigned counsel by email at [email protected] or by cell phone at 301-257-9435.

Sincerely yours,

/s/ Paul D. Kamenar
Paul D. Kamenar
1629 K Street, N.W.
Suite 300
Washington, D.C. 20006
(301) 257-9435
[email protected]


[1] Newark Post, Biden papers delivered to UD library (June 14, 2012) (https://www.newarkpostonline.com/news/article_8a684c3a-b59d-11e1-9cdc-0019bb2963f4.html

[3] Mr. Biden also appeared confused in his May 1 interview what year and month he announced his candidacy for president “I announced for pres— well, I guess it was in April or May of this year. I know of no one who’s aware that any complaint was made.”

[4] https://pbs.twimg.com/media/EW9m_IVXkAEbzJE.jpg

[5]  Presumably Mr. Biden was referring to presidents while he was a Senator from 1973-2009, not President Obama.

[6] https://abcnews.go.com/Politics/week-transcript-20-mike-pompeo-gov-mike-dewine/story?id=70478442

[7] ABC News, Why Hillary Clinton Deleted 33,000 Emails on Her Private Email Server (Sept. 27, 2016).   https://abcnews.go.com/Politics/hillary-clinton-deleted-33000-emails-secretary-state/story?id=42389308

[8]  For example, the records of former Senator Richard Lugar, which were given to the University of Indiana, contain “[n]early two decades’ worth of congressional staff files ….” Indiana University News, Richard Lugar, Lee Hamilton to join faculty of IU’s School of Global and International Studies (Jan. 24, 2013)

https://newsinfo.iu.edu/news-archive/23730.html