Can an insurance company defending a fraud claim get Wilmington police body camera and street surveillance footage under FOIA?

Plain-English summary

Defense lawyer Richard Funke, representing Progressive Northern Insurance Company, asked the City of Wilmington for two kinds of recordings of an August 2022 motor vehicle accident: (1) body camera footage from three officers (a police officer who wrote the report and two canine officers who spoke to unidentified witnesses), and (2) city-watch surveillance footage from the area. Funke wanted the body cam footage to identify witnesses; he wanted surveillance footage to determine if the driver was alone before the accident. The City verbally declined, calling it police investigative material, and offered only an in-person viewing in the City law office (no copies). Funke filed a petition.

The AG split the result:

1. Body camera footage: properly withheld. The Wilmington police body cam policy says cameras activate when officers exercise official police powers and the recordings exist to "improve the quality and reliability of investigations and increase transparency." That is investigatory work product. The footage documents the officer's investigation at the scene. Under the investigatory files exemption (§ 10002(o)(3)) and News-Journal v. Billingsley (1980), the exemption attaches as soon as the public body is aware of a potential issue and survives after the investigation closes. So whether or not an active investigation was pending in November 2022 did not matter.

2. City-watch surveillance footage: not properly withheld. The City's response made no specific argument for why street surveillance video falls under the investigatory files exemption. Without that justification, the City did not meet its § 10005(c) burden. The AG recommended production, subject to other applicable exemptions or laws (which might cover identifiable bystanders, but not the bare existence of the footage).

3. Potential litigation exemption: not applicable. Section 10002(o)(9) exempts records "pertaining to pending or potential litigation." Op. 18-IB10 limits this to litigation against the public body or a closely affiliated person. Funke's anticipated suit is against the driver/policyholder, not the City. So the City could not invoke § 10002(o)(9).

4. Victims' Bill of Rights: The City raised this as a barrier to disclosing non-law-enforcement witness identities. The AG did not need to reach the question because the body cam was already exempt on other grounds.

What this means for you

If you are a civil or insurance litigator seeking police footage in Delaware

Body camera footage from a Delaware police agency is, in practice, FOIA-exempt under the investigatory files doctrine. The exemption is durable: it does not lapse when the case closes. Your alternatives:

• Civil discovery. Once you have filed (or been sued in) a civil case where the footage is relevant, subpoena the police agency for it. The investigatory exemption is a public-records shield, not a discovery privilege.
• In-person viewing. Many agencies will let counsel view footage at the agency, even when they will not release copies. That can be enough to identify witnesses.
• Witness identification through other channels. The official accident report (uniform collision report) is available through state channels and often lists witnesses. In-person interviews with apparent bystanders (canvassing) are unrestricted.

If you handle FOIA at a Delaware municipality

Body cam exemption is solid: cite the body cam policy, the investigatory files statute, and News-Journal v. Billingsley. Surveillance footage requires more work. To support a denial:

• File an affidavit explaining why the surveillance system is part of investigative work (e.g., the system is run by Police, footage is used in case files, retention is tied to investigation status).
• Or produce the footage with redactions (faces, license plates of bystanders) where privacy concerns warrant.

A bare assertion that surveillance footage is "police investigative material" without facts will lose. The opinion is explicit on that point.

If you are a Delaware police accountability advocate

The investigatory files exemption is broad but bounded. It covers footage created by officers exercising police powers. It does not, on this opinion, cover ambient city-watch surveillance feeds without a specific investigative tie. That distinction is the lever for transparency reporting on city surveillance infrastructure.

If you are a witness who appeared on a police body cam in Delaware

Your image and statements are likely FOIA-exempt as part of the investigative file. The Victims' Bill of Rights provides additional protection against disclosure of your identity. Civil discovery in litigation can still reach you, but FOIA generally cannot.

Common questions

Q: Why is body cam footage exempt when officers say it's there for transparency?
A: The transparency rationale appears in the policy itself, but the legal effect is to document investigations. Once a record is part of the investigative file, the exemption applies regardless of the policy's stated transparency goal. Some other states (notably FL and CT) have enacted body-cam-specific public records statutes; Delaware has not.

Q: When does the investigatory files exemption start and end?
A: It attaches as soon as the agency learns of a potential issue (News-Journal v. Billingsley, 1980). It does not end when the investigation closes; the exemption survives.

Q: Can a police agency just refuse to produce city-watch surveillance footage by calling it "police material"?
A: No. Each exemption requires sworn factual support. Surveillance footage that is not tied to a specific investigation needs a different basis (security, third-party privacy, etc.) to be withheld.

Q: What is the "potential litigation" exemption and why didn't it apply here?
A: § 10002(o)(9) exempts records pertaining to pending or potential litigation against the public body. Op. 18-IB10 limits the doctrine: a third party cannot use FOIA to investigate a private claim against another private party, but the agency can withhold records when the agency itself is the (potential) defendant. Here, Progressive's anticipated suit is against the driver, not Wilmington.

Q: Can the agency offer in-person viewing instead of copies?
A: In-person viewing is one form of "reasonable access" under § 10003. But if the footage is FOIA-exempt (as the body cam is), the agency does not have to even offer in-person viewing.

Q: What is the Victims' Bill of Rights?
A: A Delaware statute that protects victims of crime from various intrusions, including disclosure of identifying information. The AG did not reach the issue here because the body cam was exempt on other grounds.

Background and statutory framework

Investigatory files exemption. § 10002(o)(3) covers files compiled for "civil or criminal law-enforcement purposes including pending investigative files, pretrial and presentence investigations and child custody and adoption files where there is no criminal complaint at issue." News-Journal v. Billingsley (1980) makes the exemption broad and durable.

Potential litigation exemption. § 10002(o)(9) covers "records pertaining to pending or potential litigation which are not records of any court." Op. 18-IB10 narrows it: the exemption only protects an agency in its capacity as a litigant or potential litigant, not third parties hoping to do private discovery through FOIA.

Body cam policies. Wilmington Police Department's body cam policy (attached to the response) limits viewing to official law enforcement purposes, requires activation during exercise of police powers, and frames the system as a tool for investigation quality and transparency. The policy itself becomes the factual basis for the investigatory files claim.

Citations and references

Statutes:
- 29 Del. C. § 10002(o)(3) (investigatory files)
- 29 Del. C. § 10002(o)(9) (potential litigation)

Cases:
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)

Prior AG opinions:
- Del. Op. Att'y Gen. 18-IB10 (Feb. 20, 2018) (potential litigation exemption limited to public body's own litigation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/18/22-ib43-11-18-2022-foia-opinion-letter-to-richard-gabler-funke-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB43.pdf

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 22-IB43
November 18, 2022

VIA EMAIL
Richard Gabler Funke
Mintzer Sarowitz Zeris Ledva & Meyers LLP
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Mr. Funke:
We write in response to your correspondence on behalf of your client, Progressive Northern
Insurance Company, alleging that the City of Wilmington violated Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your requests for body
camera footage and city surveillance footage. We treat this correspondence as a Petition for a
determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred
or is about to occur. As discussed more fully herein, we determine that the City appropriately
withheld the requested body camera footage, as it is exempt pursuant to the investigatory files
exemption. However, we find that the City failed to meet its burden of proof to justify its denial
of access to the city surveillance footage.

BACKGROUND
On August 4 and 5, 2022, you submitted two requests on your client's behalf to the City,
seeking the body camera footage and city watch surveillance footage of a motor vehicle accident
that occurred in the City. A City police officer's report noted that unidentified witnesses to the
accident spoke to two canine officers at the accident scene. As your client intends to file litigation
about potential insurance fraud in connection with the accident, you claim that all three officers'
body camera footage is necessary to identify those witnesses. In addition, the city surveillance
footage would allow you to determine if the driver was alone in her vehicle before the accident.
1

In the Petition, you assert that the City's counsel verbally declined your request on
September 8, 2022, as the footage is part of the police investigative materials. You state that you
sought to resolve this matter with the City amicably through a discovery agreement. However, the
City stated that it had viewed the videos, and there was nothing to report. When you asked again
for a copy of the footage, the City offered to allow you to view the videos in the City law office.
Because you wanted copies, you refused this offer. This Petition followed.
In the Petition, you argue that it "cannot logically be said that all body camera and
surveillance footage is compiled for pending investigations, pretrial and presentence
investigations, and child custody and adoption files." 1 You contend that the investigatory files
exemption cannot apply, as you believe no investigation was pending at the time you filed your
requests. Additionally, you argue that restricting access to this footage would impede the justice
system, as it may be the only means of determining the validity of the insurance claims submitted
to your client.
The City's counsel replied to the Petition on October 26, 2022 ("Response"). The City
states that its Police FOIA Coordinator responded to the requests in writing and provided copies
of the emails. The City notes that it has not received a subpoena nor has a court action been
commenced against the City. The City states that it issued a uniform collision report and civil and
criminal infractions to both drivers. The City argues that body camera footage is an audiovisual
record of the officer's investigation into the cause of the accident and any contributing factors,
which means it is part of the investigatory file compiled for civil or criminal law enforcement. The
City attached a copy of its body camera policy, which prohibits viewing of any body camera
footage, other than for official law enforcement purposes. The policy also states that officers are
to activate their cameras when exercising official police powers or when they believe they are
likely to exercise their police powers; the footage is a tool to document events, actions and
conditions between police and the public and is used to enhance the quality of police investigations
and increase transparency. The City notes that this Office has found uniform collision reports, fire
marshal records, automated gunfire detection systems, and criminal complaints and reports to be
subject to the investigatory files exemption, and the City contends that the body camera footage is
no different. The City points out that the investigatory files exemption attaches upon the public
body becoming aware of a potential issue and survives the termination of the investigation. In
addition, the City maintains that your request appears to be an improper use of FOIA to obtain
records for anticipated litigation. Finally, the request for the footage is barred by the Victims'
Bill of Rights, which prohibits the City from disclosing the identity of non-law enforcement witnesses.

DISCUSSION
Under FOIA, "public records shall be open to inspection and copying during regular
business hours by the custodian of the records for the appropriate public body," and "[r]easonable
access to and reasonable facilities for copying of these records shall not be denied to any citizen." 2
1

Petition (emphasis in original).

2

29 Del. C. § 10003(a).
2

However, "investigatory files compiled for civil or criminal law-enforcement purposes including
pending investigative files, pretrial and presentence investigations and child custody and adoption
files where there is no criminal complaint at issue" are exempt from the definition of "public
record." 3 In addition, "records pertaining to pending or potential litigation which are not records
of any court" are exempt from disclosure. 4 The public body carries the burden of proof to justify
its denial of access to records. 5 In certain circumstances, a sworn affidavit may be required to
meet that burden. 6 As a preliminary matter, we determine that the City's invocation of the potential
litigation exemption is not appropriate in this instance, because the records are not sought from the
public body, or a related party, who is the subject of the potential lawsuit. 7
The City contends that the body camera footage is exempt under the investigatory files
exemption. We agree. The City police force is a law enforcement agency that uses the body
camera footage for purposes of its law enforcement duties. The City policy states that the cameras
are to be activated while exercising official police powers, or whenever an officer believes they
are likely to exercise their police powers. According to the policy, the recordings are intended to
"improve the quality and reliability of investigations and increase transparency." 8 Hence, the
footage documents the officer's investigation and interactions at a scene and is compiled for
purposes of criminal or civil law enforcement. The investigatory files exemption attaches at the
public body's initial notice of a potential issue. 9 Accordingly, we find that the body camera
footage is exempt pursuant to the investigatory files exemption.

3

29 Del. C. § 10002(o)(3).

4

29 Del. C. § 10002(o)(9).

5

29 Del. C. § 10005(c).

6

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

7

Del. Op. Att'y Gen. 18-IB10, 2018 WL 1405826, at *5 (Feb. 20, 2018) ("Addressing the
second issue first, we believe that the 'potential litigation' exemption can only be reconciled with
the broader language of the FOIA statute if it is limited to potential litigation against the
government agency from which the documents in question are sought, or some closely affiliated
person or entity. To interpret the statute otherwise would prevent citizens from conducting basic
investigations that might be necessary to them later gaining access to the courts to remedy some
legal wrong committed by a party wholly unrelated to the government entity in question - even if
the documents sought in the course of those investigations would otherwise be public documents
freely available to any other citizen seeking them.").
8

Response, Ex. B.

9

News-Journal Co. v. Billingsley, 1980 WL 3043, at 3 (Del. Ch. Nov. 20, 1980)
(determining that the investigatory files exemption attaches as soon as a public body is made aware
of a potential issue and the exemption survives after the investigation is completed); see also Del.
Op. Att'y Gen. 17-IB47, 2017 WL 4652343, at 1 (Sept. 22, 2017); Del. Op. Att'y Gen. 05-IB16,
3

With respect to the surveillance footage, the City's Response presents no arguments to
justify its denial of this footage under the investigatory files exemption. As the City has not met
its burden of proof for withholding this footage, we determine that the City violated FOIA by
refusing access to this footage. However, as the release of surveillance footage possibly implicates
other rights or concerns, we recommend that the City produce this footage, to the extent compliant
with any other applicable exemptions or laws.

CONCLUSION
For the reasons set forth above, we conclude that that the City did not violate FOIA by
refusing access to the body camera footage pursuant to the investigatory files exemption.
However, we find that the City failed to meet its burden of proof to justify its denial of access to
the city surveillance footage.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor

2005 WL 2334345, at 2 (Jun. 22, 2005); Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199, at 1
(Dec. 8, 1998).
4