If a former Delaware police academy cadet asks for body-cam footage and his evaluations from the academy, can the city refuse by saying he's just trying to set up a lawsuit?

Official title

24-IB10 02/21/2024 FOIA Opinion Letter to Joshua Carter re: FOIA Complaint Concerning the City of Dover

Plain-English summary

Joshua Carter attended the Dover Municipal Police Academy from October 8 to November 28, 2023. On December 7, 2023, he submitted a detailed FOIA request to the City of Dover seeking: all body-camera footage involving him from any academy staff (specifically tac officers Master Cpl. W. Johnson, Cpl. Hudson, and PFC Burton); two specific videos that Master Cpl. Johnson took (his baton fight, and the entire OC spray training); all correspondence between the academy and the Town of Dewey Beach / Dewey Beach Police Department concerning him; and any notes, documentation, performance evaluations, or grades concerning him.

The City requested additional time on December 21, 2023 for legal review. After Carter followed up on January 21, 2024, the City sent a link with three body-cam videos and two internal documents. Carter said the response was incomplete; many requested records were missing. On January 23, 2024, the City sent another link and added a justification: federal FOIA "Exemption 7" (law-enforcement records).

Carter petitioned. He argued (1) the City was untimely, (2) the City had not formally identified the specific exempt material with redactions, and (3) the federal Exemption 7 reference was inapplicable to a Delaware FOIA proceeding.

The City's counsel submitted three submissions: (1) records would be released; (2) records were exempt under the Delaware potential-litigation exemption (29 Del. C. § 10002(o)(9)) and the parties might resolve outside the petition; (3) the second position was the City's final answer. The AG accepted the second/third Response: the City asserted that Carter sought records for purposes of potential litigation, FOIA cannot be used to circumvent court discovery, and the records could be subject to court-imposed protective orders.

The AG ruled partially for and partially against the City:
- The timeliness claim was moot once the City responded.
- The "formal letter listing redactions" claim failed: FOIA does not require a formal letter format or a redaction index (§ 10003(h)).
- The potential-litigation exemption claim, however, failed for lack of evidentiary support. Under ACLU v. Danberg (Del. Super. 2007), the Delaware potential-litigation exemption requires (1) litigation must be likely or reasonably foreseeable, and (2) a clear nexus between the records and the subject matter of the litigation. Objective signs include written demand letters, prior litigation between the parties, ongoing similar litigation, retention of legal counsel, or expression of intent to sue. The City asserted the exemption but provided no evidentiary support. The AG found a FOIA violation and recommended the City supplement its response.

What this means for you

For Delaware police academy cadets and former cadets. This opinion gives you a path to your training records. The pure assertion that "you might sue someday so we can withhold everything" is not enough. The City has to produce objective evidence: a demand letter, a written notice of intent to sue, a retainer letter, or other concrete signs of foreseeable litigation. If the City has none of those, your records should be produced (subject to legitimate other exemptions like personnel-file protections for third parties or genuine investigative-files claims).

For municipal attorneys defending FOIA denials based on potential litigation. Don't just assert the exemption. Build the record. The Danberg test is two prongs and the second prong (clear nexus) is hard without an actual or imminent lawsuit framing the discovery scope. If you want to invoke the exemption, attach a sworn statement explaining the objective signs of foreseeable litigation: who threatened to sue, when, on what theory, with what supporting evidence. AG 24-IB10 is now the cleanest authority that bare-assertion potential-litigation claims fail.

For police academy training records management. Cadet training records (evaluations, body-cam footage, grades) are routinely requested by cadets. Plan for production. The harder question is whether body-cam footage from training scenarios involving classmates can be redacted to protect classmate privacy. The AG opinion does not directly address this, but the standard would be to redact non-Carter cadets' identifying information under personal-privacy-related exemptions, while producing the rest.

For pro se FOIA requesters generally. When you receive a denial citing the potential-litigation exemption, write back asking for the City's evidence: who says they're going to be sued, on what theory, with what objective signs. If the City can't answer, the AG petition will likely succeed.

Common questions

What's the two-prong test from ACLU v. Danberg?
ACLU v. Danberg (Del. Super. Mar. 15, 2007) held that the potential-litigation exemption (different from the pending-litigation exemption, though they live in the same statutory provision) requires: (1) litigation is likely or reasonably foreseeable, AND (2) there is a "clear nexus" between the requested documents and the subject matter of the litigation. The "likely or reasonably foreseeable" prong demands objective signs, not subjective fear.

What objective signs count?
Per Danberg: a written demand letter asserting a claim or demanding action; prior litigation between the parties; proof of ongoing similar litigation; retention of legal counsel with respect to the claim; expression of intent to sue. Each one alone may be enough; together they make a stronger case.

Why didn't the City provide that evidence?
Unclear from the opinion. Possibly because the City did not in fact have such evidence: Carter's own communications may not have been "demand letters" or "intent to sue" notices. The City's bare assertion suggests speculation, not actual indicators. The AG was unwilling to accept speculation.

What about federal FOIA Exemption 7?
Federal FOIA's Exemption 7 (5 U.S.C. § 552(b)(7)) covers law-enforcement records. It is the federal analog to Delaware's investigatory-files exemption (29 Del. C. § 10002(o)(3)). The City's invocation of "Exemption 7" was a reference to federal law, which does not control Delaware FOIA proceedings. The AG opinion does not analyze whether Delaware's investigatory-files exemption could apply; the City did not invoke it.

Why was the formal-letter / redaction-index claim dismissed?
29 Del. C. § 10003(h) sets forth what a denial must include (reason for denial, citation to exemption, etc.) but does not require a specific letter format or an itemized redaction index. The AG has consistently held that an email exchange citing the exemption is sufficient if the substance is clear.

What's the City supposed to do now?
The AG recommended the City "review its records and supplement its response" in accordance with the opinion and § 10003 timeframes. Practically, that means: (a) re-review the responsive records, (b) decide which exemptions actually apply with evidence, (c) produce non-exempt records (including any body-cam footage, evaluations, and Dewey Beach correspondence that don't fit a defensible exemption), and (d) issue an updated denial with specific exemption citations for the records that remain withheld. If Carter is unsatisfied, he can file a fresh petition.

Background and statutory framework

29 Del. C. § 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court."

ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007), established the two-prong test for the potential-litigation prong specifically (litigation likely or foreseeable; clear nexus). Pending-litigation cases like 21-IB02, 21-IB20, 21-IB29, 23-IB26 use a parallel structure but with different first-prong evidence (the lawsuit is already filed).

29 Del. C. § 10003(h) governs the form of denial. No formal-letter requirement; no redaction-index requirement.

29 Del. C. § 10005(c) places the burden on the public body. The Judicial Watch v. UDel line confirms that bare assertions are insufficient; sworn statements with specifics are required.

The mootness chain (Flowers, Chemical Industries Council, AG opinions) supports declining to issue remediation when the underlying delay has been cured.

Citations

• 29 Del. C. § 10002(o)(9): pending or potential litigation
• 29 Del. C. § 10003, § 10003(a), § 10003(h): reasonable access; denial form
• 29 Del. C. § 10005, § 10005(c): petition; burden of proof
• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter
• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Flowers v. Office of the Governor, 167 A.3d 530, 546 (Del. Super. 2017)
• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
• ACLU v. Danberg, 2007 WL 901592 (Del. Super. Mar. 15, 2007): two-prong potential-litigation test

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/02/21/24-ib10-02-21-2024-foia-opinion-letter-to-joshua-carter-re-foia-complaint-concerning-the-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/02/Attorney-General-Opinion-No.-24-IB10.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-IB10
February 21, 2024

VIA EMAIL
Joshua B. Carter
[email protected]

RE: FOIA Petition Regarding the City of Dover

Dear Mr. Carter:
We write in response to your correspondence alleging that the City of Dover violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). 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 find that the City violated FOIA by failing to meet its burden to justify the denial of access to the requested records. We determine that no violation occurred with respect to the remaining claims in the Petition.

BACKGROUND
On December 7, 2023, you submitted a FOIA request to the City seeking various records related to your attendance of the City of Dover Municipal Police Academy:
I attended the Dover Municipal Police Academy from 10/8/2023 to 11/28/2023. I am requesting ALL body camera footage from any staff at the academy that involves myself. The three TAC officers were Master CPL. W. Johnson, CPL. Hudson, and PFC Burton of the Dover Police Department. I am also requesting the two camera videos that Master CPL Johnson took of my baton fight and the video he took of the entire class during the OC Spray training. I want ALL correspondence between the Dover Municipal Police Academy and the Town of Dewey Beach/Dewey Beach Police Department including emails and documentation concerning myself. I also want to see any notes/documentation/performance evaluations/grades concerning myself kept by the Dover Police Department / Dover Municipal Police Academy including those pertaining to any meetings. Known body camera dates: Monday November 27, 2023 / Thursday November 9th / Monday October 9th. OC Spray: Wednesday November 22, 2023 /Baton: Friday November 17th, 2023.

On December 21, 2023, the City Clerk's Office sent an email stating additional time was needed to complete the response, as legal advice was needed. The City estimated being able to provide a preliminary response and invoice for the costs by January 20, 2024. On January 21, 2024, you followed up regarding the request. On January 22, 2024, a Dover officer sent you a link to upload responsive records. The City Clerk's Office also sent an email noting that you had been provided this link. That same day, you replied that this link, with three body camera videos and two internal documents, did not include all the records you requested. You stated that the City owed you an additional response outlining the reasons that the other records were denied. Among the records you allege are missing are grades, certain evaluations, the class O.C. spray video, the baton test video, the correspondence with the Town of Dewey Beach, and any notes or write-ups you received while in the academy. On January 23, 2024, the City officer sent another link to download a zip file. This response also stated that the federal FOIA "Exemption 7" applies, which exempts records compiled for law enforcement purposes that would disclose techniques and procedures for law enforcement investigations or prosecutions and that could be reasonably expected to endanger the life or physical safety of an individual. This Petition followed.

In the Petition, you allege that the City failed to release documents in a timely manner and failed to fulfill the entirety of your request. You believe that other requested records must exist and assert that the City has failed to provide you with at least seven records. Additionally, you allege that the cited law enforcement exemptions do not apply to the records you requested. You contend that as a public body, the City is bound to provide redacted documents if some of the materials meet FOIA exemptions and the City has ignored your requests. You assert that the City has not provided a formal letter or email citing the specific material that is exempt or redacted.

On January 31, 2024 and February 1, 2024, the Town's counsel replied on its behalf to the Petition (collectively, "Responses"). The City asserts that you seek these records for the purposes of potential litigation, and the pending or potential litigation exemption in 29 Del. C. § 10002(o)(9) applies to the remaining records. The City asserts that FOIA is not a tool to circumvent a court's discovery process, in which the materials requested could be subject to a court-imposed protective order to safeguard public and personal safety.

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for 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. In certain circumstances, a sworn affidavit may be required to meet that burden. As the City provided a response, the Petition's timeliness claim is now moot.

The Petition also asserts that the City was required to send a formal letter citing the specific material redacted in response to the request. FOIA does not require a response to a request to be issued in the format of a formal letter, nor is a public body required to produce an index, or any other compilation, as to each record or part of a record denied. As such, we do not find a violation of FOIA in this regard.

Finally, the Petition alleges that the remaining records were improperly withheld. The City asserts that the records that were not produced are exempt under the potential litigation exemption. Governments always face some threat of suit, and construing "potential litigation" to include "an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]." To address this dynamic, the Superior Court of Delaware has adopted this Office's two-prong test for the potential litigation exemption: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." These signs may include a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." Other indicators may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue. The Responses merely asserted the potential litigation exemption without providing evidentiary support to the meet this standard. As such, we find that the City did not meet its burden of proof and determine a violation occurred in this regard. We recommend that the City review its records and supplement its response to your request, in accordance with this Opinion and the FOIA statute, including the timeframes set forth in Section 10003.

CONCLUSION
Based on the foregoing, we conclude that the City violated FOIA by failing to meet its burden to justify the denial of access to the requested records. We determine that no violation occurred with respect to the remaining claims in the Petition.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc:
Nicholas H. Rodriguez, City Solicitor
Mark A. Denney, Jr., Attorney for the City of Dover Police Department