Can a Delaware town withhold surveillance video of a Town Hall confrontation when criminal charges are still pending?

Official title

18-IB45 10/5/2018 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

A Dover Post reporter requested surveillance video from a Dewey Beach Town Hall parking lot that captured a confrontation between a private citizen and a Town committee chairman. The Town denied the request, citing the investigatory-files exemption in Delaware FOIA. The reporter argued the public interest in the video was high, the underlying investigation had effectively closed, the Town's counsel (who was also a reporter for another outlet) might have viewed it, and other police agencies in Delaware had released similar videos in the past.

The AG rejected each argument. The Criminal Division of the Delaware DOJ confirmed the matter was still active, with trial scheduled for October 2018. That placed the video squarely inside 29 Del. C. § 10002(l)(3), which excludes "investigatory files compiled for civil or criminal law-enforcement purposes" from the definition of "public record." Public interest in a record does not override a clear statutory exemption. Town counsel's potential viewing of the video had no effect on its FOIA status (and counsel said he had not viewed it). And the fact that other public bodies sometimes voluntarily waive a FOIA exemption does not require this one to do so.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the investigatory-files exemption?

29 Del. C. § 10002(l)(3) at the time excluded from the FOIA definition of "public record" any "investigatory files compiled for civil or criminal law-enforcement purposes." Once a record is inside such a file and the matter is active, the document is not a "public record" at all, and the public body's denial does not require any further justification (such as a balancing test).

Could the reporter argue public interest?

He did, but unsuccessfully. The AG was clear that public interest is not a factor that overcomes the (l)(3) exemption. The statute defines "public record" by category; if a record falls outside the definition, no public interest argument brings it back inside.

Did it matter that other agencies had released similar videos?

No. The opinion held that whether similar records have been released by other public bodies has no bearing on whether the exemption was properly applied here. A voluntary release by one body does not require another body to release a similar record. Each body holds its own decision.

What about Town counsel possibly viewing the video?

The Town's counsel confirmed he had not viewed it, but the AG added that even if he had, that fact would not have been "probative in determining whether the video is a 'public record.'" Access by one party does not unwind the exemption.

Could the video come out through the criminal case?

Footnote 1 says "whether certain investigative records may become available through the criminal court proceeding is not a question under FOIA." The Town's counsel said the video might be released after the case concluded, but the opinion did not decide whether or when that would happen.

Background and statutory framework

Delaware FOIA at 29 Del. C. § 10002(l) defines "public record" by enumeration and exclusion. Subsection (l)(3) carves out "investigatory files compiled for civil or criminal law-enforcement purposes." Once a record sits inside such a file and the matter is active, the document is not a "public record" at all, and the public body's denial does not require any further justification such as a balancing test.

The opinion also treated the exemption as permissive from the public body's standpoint: a body may voluntarily release a record otherwise covered, but no one can compel that release through FOIA.

Citations

• 29 Del. C. § 10001 (declaration of policy)
• 29 Del. C. § 10002(l)(3) (investigatory-files exemption)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/05/18-ib45-10-5-2018-foia-opinion-letter-mr-craig-odonnell-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB45.pdf

Original opinion text

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
DEPARTMENT OF JUSTICE
CRIMINAL DIVISION (302) 577-8500
NEW CASTLE COUNTY
FAX: (302) 577-2496
MATTHEW P. DENN 820 NORTH FRENCH STREET FRAUD DIVISION (302) 577-8600
ATTORNEY GENERAL WILMINGTON, DELAWARE 19801 FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion 18-IB45

October 4, 2018

VIA EMAIL
Craig O’Donnell, Dover Post
c/o [email protected]

RE: FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. O’Donnell:

We write in response to your correspondence alleging that the Town of Dewey Beach (“Town”) violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C.
§ 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. Because the requested record is part of an investigatory file, we find that the Town has not violated FOIA as alleged.

BACKGROUND

On August 22, 2018, you requested the surveillance video of a confrontation between two individuals in the parking lot of Dewey Beach Town Hall. You allege that this confrontation between a private citizen and Town committee chairman arose out of the citizen’s removal of a document from a public meeting. According to your Petition, the Town denied your request on the basis that the video was exempted from the definition of “public record” in the FOIA statute, because the video is part of an investigatory file.

You then sent a Petition to this Office, alleging that the video was improperly withheld due to: 1) the significant public interest in the video; 2) the closing of the investigation related to the incident in the video; 3) unequal media access to the video by the Town’s counsel who is also a reporter and who you assumed viewed the video; and 4) the previous release of other videos in

investigative files in Delaware.1 By letter dated September 25, 2018 from Town counsel (“Response”), the Town denied any violation of FOIA, asserting that the video is part of an investigatory file for criminal enforcement by the Criminal Division of the Delaware Department of Justice and stating that the investigation has not closed. Trial is scheduled for October 2018. Town counsel further stated that he has not viewed the video, and upon conclusion of the case, the video may then be released per state and federal precedent in Delaware.

DISCUSSION

One of FOIA’s primary purposes is to grant citizens access to public records.2 However, FOIA exempts several types of records from the definition of “public record,” including “investigatory files compiled for civil or criminal law-enforcement purposes.”3 Here, the Town has indicated that the requested video is part of an investigative file with a criminal case currently pending.4 These circumstances fall squarely within the exemption,5 and thus, we find that the Town’s denial of your request did not violate FOIA as alleged.6

CONCLUSION

These circumstances fall squarely within the exemption. Under the law, the issues of public interest, whether Town counsel may have viewed this record, and whether similar public records 1 Specifically, the Petition mentions a case in which a federal judge decided an arrest video was not confidential and the police agency thereafter released the video. However, the issue of whether certain investigative records may become available through the criminal court proceeding is not a question under FOIA. Further, another police agency’s release, without more, does not affect the analysis here, as FOIA does not preclude a public body from voluntarily releasing a record that would otherwise be considered a public record under the statute. See Del. Op. Att’y Gen. 09-IB06, 2009 WL 1805911, at 2 (June 9, 2009) (citing favorably to a public body’s right to voluntarily waive a FOIA exemption). 2 29 Del. C. § 10001.
3
29 Del. C. § 10002(l)(3).
4
Response.
5
See News Journal Co. v. Billingsley, 1980 WL 3043, at 2-3 (Del. Ch. Nov. 20, 1980) (finding that documents related to a Delaware Association of Professional Engineers investigation were appropriately withheld as part of an investigative file); Del. Op. Att’y Gen. 17-IB23, 2017 WL 3426263, at 8 (July 14, 2017) (concluding that medical records associated with an on-going criminal case were exempt as investigatory files); Del. Op. Att’y Gen. 04-IB20, 2004 WL 2951950, at 2 (Nov. 16, 2004) (determining that an accident report was not a “public record” under FOIA as it was part of an investigative file). 6 In the Response, Town counsel affirmed that he has not viewed the video. However, even if counsel had viewed it, we do not find this fact probative in determining whether the video is a “public record.” 2

have been released by other public bodies do not have bearing on whether this exemption has been properly applied. Thus, we find that the Town’s denial of your request did not violate FOIA as alleged.

Very truly yours,

/s/ Dorey L. Cole
_____
Dorey L. Cole
Deputy Attorney General

Approved:

/s/ Allison E. Reardon
_______
Allison E. Reardon
State Solicitor

cc: John F. Brady, Esq. (via email)

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