EXCLUSIVE: Following records requests from Fox News about documents related to Tara Reade's allegations against Joe Biden, the University of Delaware refused to provide any documents from its collection of Biden's senatorial papers, citing a provision in state law that purportedly exempts the school from requests not related to "public funds."
The university, which stores and owns the records, gave its response late Wednesday ahead of a looming deadline.
On April 29 and 30, Fox News sent three public records requests to the University of Delaware asking for access to any documents in its possession in relation to Reade's allegations against the presumptive Democratic presidential nominee. Biden, his campaign and other former staffers for Biden have denied the allegation and said it could not have happened in that Senate office's culture – while also maintaining, in response to inquiries about his senatorial records, that personnel files would not be housed at the university.
One request asked for all documents in the Biden senatorial papers "that are from 1993 and mention a staffer named 'Tara Reade' by either her first or last name," and documents from 1993 that "mention complaints filed against Sen. Joseph R. Biden Jr., or any of the staffer in his Senate office." A second asked for "a copy of the gift agreement between the University of Delaware and Joseph R. Biden Jr.," regarding the senatorial papers and "any other documents that relate to the university's policy of releasing" the papers "'no sooner than the later date of December 31, 2019, or two years after the donor retires from public life.'"
Those requests were denied, the university's Associate Vice President and General Counsel Jennifer Becnel-Guzzo said, because "[t]he documents and correspondence you have requested do not relate to the expenditure of public funds, as defined by FOIA."
The university appears to be relying on a single ambiguous clause to claim that it is shielded from requests having to do with "activities of the University of Delaware."
Adam Laxalt, the former Republican attorney general of Nevada and the outside counsel of Americans for Public Trust, a nonprofit government watchdog, cast doubt on the grounds for the university's denial.
"The Delaware Freedom of Information Act is intended to guarantee access of public information from public entities to the public," Laxalt said. "It is hard to believe that this narrow exception the university relies on was ever contemplated to shield from the public a collection of papers like the Biden papers."
The act's preamble states that 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."
Laxalt added: "In areas of ambiguity like we have here, courts understandably tend to be very deferential in guarding the public's right to public information."
Fox News sent a separate request asking for "all correspondence involving any members of the University of Delaware's board of trustees, the university president, or any employees of the university library" relating to Biden's presidential run or the senatorial papers after March 1. Reade, a former Senate staffer, leveled her sexual assault allegation against Biden later that month.
In her response, Becnel-Guzzo noted that meetings of the University of Delaware's board of trustees are expressly subject to public records requests under Delaware's FOIA law. She said, though, that there is no record of Biden's papers or presidential run being discussed at the meetings.
"The candidacy of Joseph R. Biden, Jr. for president and the Joseph R. Biden, Jr. senatorial papers were never addressed in a meeting of the full board of trustees," Becnel-Guzzo's response read. "Therefore, the university has no public records responsive to your three requests."
The University of Delaware previously told Fox News that it will not release the senatorial papers without the former vice president's "express consent." Reade has called for Biden to agree to the records' release.
"What I don't know is whether Delaware law allows a contract between a public university and a private citizen to supersede FOIA," Laxalt said regarding the gift agreement between Biden and the university.
Reade, who previously had accused Biden of inappropriate contact, now says Biden cornered her and penetrated her with his fingers in 1993. She says she filed a sexual harassment complaint at the time.
Biden has repeatedly said the university would not have a record of any complaint like the one Reade says she filed. He has instead asked Secretary of the Senate Julie E. Adams to search the National Archives for papers that might have been filed with the entity that was then called the Office of Fair Employment Practices.
"There is only one place a complaint of this kind could be — the National Archives," Biden said in a written statement early this month before he appeared on MSNBC's "Morning Joe" to personally address Reade's allegation for the first time.
"The National Archives is where the records are kept at what was then called the Office of Fair Employment Practices," Biden continued. "I am requesting that the Secretary of the Senate ask the Archives to identify any record of the complaint she alleges she filed and make available to the press any such document. If there was ever any such complaint, the record will be there."
But Adams later got back to Biden, telling him that her hands are tied and there is no way she could confirm whether the complaint exists, even to Biden or Reade herself.
"The Secretary's Office was advised by Senate Legal Counsel that disclosing the existence of such specific records would amount to a prohibited disclosure under the Government Employee Rights Act of 1991. Furthermore, we are not aware of any exceptions in law authorizing our office to disclose any such records that do exist, if any, even to original participants in a matter," Adams' office said.
Beyond its refusal to disclose the Biden papers citing its agreement with the former vice president, the University of Delaware has also said multiple times that because documents have not been digitized, "there is no systematic way to search the archive as has been suggested." The school has, however, confirmed that it maintains official ownership of the documents after Biden donated them.
The university initially said it expected to make the records “available to the public two years after Biden’s last day in elected public office.” In April 2019, just hours before Biden announced his current presidential bid, the university changed its timeline, and said the papers wouldn't be released until either Dec. 31, 2019, or until two years after Biden “retires from public life,” whichever comes later.
Biden in his "Morning Joe" interview said the senatorial papers contain sensitive details of conversations he had with presidents, foreign leaders and other information that could unfairly be used as "fodder" against his presidential campaign, as he pushed back on any search of those files.
Whether documents under the control of the University of Delaware and the U.S. Senate ever see the light of day, Biden continues to deny that he sexually assaulted Reade.
"No. It is not true. I’m saying unequivocally it never, never happened, and it didn’t. It never happened," Biden said in the "Morning Joe" interview.
Reade, who was a supporter of Biden's opponent Bernie Sanders during the Democratic primary, has had several associates back her story in part, saying she told them about the alleged incident years ago. Additionally, last month a clip from "Larry King Live" in August 1993 resurfaced in which a woman, who Reade claims is her mother, speaks about problems her daughter had with a prominent senator, saying she has a story to tell but opted not to go to the press out of respect for her former boss.
The woman in the call does not mention Biden or sexual assault, though.
Still, numerous reports have emerged raising questions about inconsistencies and other concerns in Reade's account.
In addition to the denials from himself, his campaign and his former staffers, Biden has also received general support from Democrats as a whole.
Fox News' Joseph A. Wulfsohn and Gregg Re contributed to this report.