Can a Delaware criminal defendant who says he was exonerated FOIA the dash and body camera footage from his own arrest cases after they close?

Official title

24-IB07 02/09/2024 FOIA Opinion Letter to Todd Austin re: FOIA Complaint Concerning the Division of Delaware State Police of the Department of Safety and Homeland Security

Plain-English summary

Todd Austin sent the Delaware State Police (DSP) four FOIA requests for dash and body camera footage and for footage from Troop No. 7's arraignment room and hallway, tied to specific officers, dates, and case numbers from his criminal matters. DSP denied the requests under the investigatory-files exemption, 29 Del. C. § 10002(o)(3), and under § 10002(o)(6). Austin petitioned the AG, arguing that § 10002(o)(3) covers only pending investigatory files and that, because his cases had ended and he had been exonerated, the footage should be released.

The AG found no violation. The opinion holds that the investigatory-files exemption is not limited to pending investigations and continues to apply after an investigation is closed. Because the requested footage was part of DSP's investigatory files for Austin's criminal cases, it was exempt under § 10002(o)(3). The AG did not need to reach the second exemption DSP cited.

What this means for you

If you were a defendant in a Delaware criminal case

The opinion holds that the investigatory-files exemption in § 10002(o)(3) keeps applying to a closed case, so FOIA did not give Austin access to the dash and body camera footage from his cases. The AG did not treat exoneration or the close of the case as removing the exemption.

If you handle FOIA for a Delaware police agency

The opinion holds that records that are part of an investigatory file compiled for criminal law-enforcement purposes remain exempt under § 10002(o)(3) after the investigation closes. Here, the requests sought footage tied to specific criminal cases, and the AG found the exemption applied without reaching § 10002(o)(6).

If you are a defense attorney

The opinion notes DSP's point that, to the extent Austin was entitled to records connected to those cases, he had the ability to seek them during trial through the applicable rules of criminal procedure. The AG's holding rests on the FOIA exemption; it did not address what other avenues might exist outside FOIA.

Common questions

Does the investigatory-files exemption end when the case is over?

No. The opinion holds the exemption is not limited to pending investigations and continues to apply after an investigation is closed.

Did being exonerated change the result?

No. Austin argued that exoneration and the end of his cases should unlock the footage. The AG still found the records exempt under § 10002(o)(3).

Did the AG decide whether the second exemption applied?

No. Having found the footage exempt under § 10002(o)(3), the AG stated it need not address the applicability of the additional exemption DSP cited under § 10002(o)(6).

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10008, requires that citizens be provided reasonable access to and reasonable facilities for copying public records, and in any action under § 10005 the public body has the burden of proof to justify its denial. Section 10002(o)(3) exempts "[i]nvestigatory 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." The opinion applies that exemption to footage held as part of DSP's investigatory files for Austin's criminal cases and holds that the exemption survives the close of the investigation.

Citations

• 29 Del. C. §§ 10001-10008 (Delaware FOIA)
• 29 Del. C. § 10002(o)(3) (investigatory files exemption)
• 29 Del. C. § 10002(o)(6) (records exempt by other statute or common law)
• 29 Del. C. § 10005 (petition and burden of proof)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/02/09/24-ib07-02-09-2024-foia-opinion-letter-to-todd-austin-re-foia-complaint-concerning-the-division-of-delaware-state-police-of-the-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/02/Attorney-General-Opinion-No.-24-IB07-Corrected.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. 24-IB07

February 9, 2024

VIA EMAIL

Todd Austin
[email protected]

RE: FOIA Petition Regarding the Division of Delaware State Police of the Department of Safety and Homeland Security

Dear Mr. Austin:

We write regarding your correspondence alleging that the Division of Delaware State Police of the Department of Safety and Homeland Security ("DSP") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat your 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. For the reasons set forth below, we find that the DSP did not violate FOIA by denying access to the requested records.

BACKGROUND

Between November 24, 2023 and November 26, 2023, you submitted four requests to the DSP seeking: 1) dash and body camera footage from a specified officer and his vehicle on August 16, 2023; 2) footage from Troop No. 7's arraignment room and hallway on July 18, 2022; 3) body camera footage from two specified officers on July 18, 2022; and 4) body camera footage from six officers on July 18, 2022. For each of these requests, you noted that the records involved a case and noted the case number. On January 2, 2023, the DSP denied access to these requests, stating that the records were exempt pursuant to 29 Del. C. § 10002(o)(3) and (6). This Petition followed.

In this Petition, you argue that these exemptions do not apply; rather, Section 10002(o)(3) only covers pending investigatory files. As these cases have ended and you have been exonerated, you argue that these requested records should now be released.

The DSP, through its legal counsel, replied to your Petition on January 22, 2024. The DSP contends that its response was appropriate, as the requests seek records related to your criminal matters, and the investigatory files exemption in 29 Del. C. § 10002(o)(3) continues to apply to the criminal investigatory files even after the investigations are closed. The DSP asserts that to the extent that you were entitled to any records in connection with those cases, you had the ability to seek them during trial through the applicable rules of criminal procedure.

DISCUSSION

FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records. The DSP asserts that the investigatory files exemption in Section 10002(o)(3) applies, which exempts "[i]nvestigatory 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." These requests seek various DSP investigatory records pertaining to the relevant criminal cases. As this Office has previously held, the investigatory files exemption is not limited to pending investigations and continues to apply after an investigation is closed. Accordingly, we find that the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3), and we need not address the applicability of the additional exemption cited by the DSP.

CONCLUSION

For the foregoing reasons, we determine that the DSP did not violate FOIA by denying access to the requested records.

Very truly yours,

/s/ Alexander S. Mackler

Alexander S. Mackler
Chief Deputy Attorney General

cc: Joseph C. Handlon, Deputy Attorney General (via email)
Dorey L. Cole, Deputy Attorney General (via email)