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

Plain-English summary

Todd Austin filed four FOIA requests with the Delaware State Police (DSP) seeking dash camera footage, arraignment-room footage, and body camera footage from various officers in connection with criminal cases involving him. He explicitly tied each request to a case number. After the cases ended (Austin says he was exonerated), DSP denied the FOIA requests under § 10002(o)(3) (investigatory files) and § 10002(o)(6) (statutory/common-law exemption).

Austin argued the investigatory-files exemption applies only to pending investigations and that exoneration should remove the bar.

The AG affirmed the denial. News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), holds 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." A long line of AG opinions (17-IB47, 05-IB16, 98-IB13) have applied that rule. The exemption is not unlocked by acquittal, dismissal, or exoneration.

DSP also pointed out that during the underlying criminal proceedings, Austin had access to discovery through criminal-procedure rules. Once the case is over, criminal-procedure discovery is no longer the operative tool, but FOIA does not become a substitute.

What this means for you

If you were a defendant in a Delaware criminal case

After the case ends, FOIA generally will not unlock investigative files about your arrest, even if you were exonerated. Practical alternatives:

• Civil-rights litigation. A § 1983 suit (federal civil-rights claim) gives you discovery access. If you have a viable claim of false arrest, malicious prosecution, or excessive force, that may be the route to records.
• Defense file. Your defense attorney's file should include any discovery they obtained during the case. That file is yours.
• Court records. Plea colloquies, sentencing transcripts, and trial transcripts are often public, subject to redaction rules.
• Subpoena from a related civil case. If there is a pending civil dispute (e.g., insurance claim, parallel suit), records may be subpoenable.

If you handle FOIA for a Delaware police agency

The denial template here is straightforward: § 10002(o)(3), citing Billingsley. No affidavit is required when the request, on its face, is for police investigative files about specific cases.

If you are a civil-rights or defense attorney

The AG has consistently rejected the "exoneration unlocks investigative files" argument. To get post-acquittal access:

• File a § 1983 claim and use federal discovery rules.
• File a defamation or malicious-prosecution claim under Delaware law.
• Negotiate with the prosecutor for voluntary release.

If you are interested in police accountability

This opinion shows the practical limit of state-level FOIA in police-misconduct contexts. Delaware FOIA does not have a public-interest balancing test for the investigatory-files exemption (unlike federal FOIA exemption 7). To get systemic data, look to:

• Aggregate use-of-force statistics (Op. 24-IB09 confirms these can become public).
• Annual reports of the Council on Police Training and other oversight bodies.
• Public court records.

Common questions

Q: Wasn't the investigation finished when I was acquitted?
A: For purposes of § 10002(o)(3), it doesn't matter. Billingsley held the exemption survives investigation closure. The chilling-effect rationale (witness cooperation, source protection) persists indefinitely.

Q: Can I get my own arrest report?
A: The arrest report is generally part of the investigative file and exempt under FOIA. Your defense attorney got a copy through criminal discovery; that copy is the practical access point.

Q: What about body camera footage specifically?
A: Body and dash camera footage are part of the investigatory file and exempt under § 10002(o)(3). Op. 24-IB07 (this opinion) and Op. 24-IB11 confirm this for various contexts.

Q: Does Delaware have a public-interest exception for these records?
A: No. Section 10002(o)(3) is categorical. Some other states (and federal FOIA exemption 7) have balancing tests; Delaware does not.

Q: I was a victim or witness in a closed case. Can I get the records?
A: Generally no, under the same rule. Some prosecutors voluntarily share, especially with victims. Ask the prosecutor's office.

Q: What about FOIA requests for general DSP body-cam policies?
A: Policy documents are a separate category. They may also be exempt under the security exemption (§ 10002(o)(17), see Op. 24-IB09), but the investigatory-files exemption itself does not reach them.

Q: Why does the criminal-procedure-rules-already-gave-me-access argument matter?
A: It is a backstop point, not the holding. The AG's main point is that the records are exempt under FOIA. The criminal-procedure point is that you had a different access path during the case, so FOIA after the fact is not your safety net.

Citations and references

Statutes:
- 29 Del. C. § 10002 (Definitions; investigatory files exemption)
- 29 Del. C. § 10003 (Access)
- 29 Del. C. § 10005 (Enforcement; burden of proof)

Cases:
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), exemption survives closure

Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB47 (Sept. 22, 2017)
- Del. Op. Att'y Gen. 05-IB16 (June 22, 2005)
- Del. Op. Att'y Gen. 98-IB13 (Dec. 8, 1998)

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

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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. The investigatory files exemption is not limited to pending investigations and continues to apply after an investigation is closed. Thus, the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

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
Dorey L. Cole, Deputy Attorney General