Can the Delaware State Police refuse to release body camera and dash camera footage from a 2023 incident under FOIA?

Plain-English summary

Joshua Morgan, Sr. submitted a FOIA request to the Delaware State Police on July 7, 2023, asking for body camera footage, dash camera footage, helicopter footage, and dispatch communications related to a January 2023 incident. DSP acknowledged the request on August 10, 2023, saying it had been sent for legal review. Mr. Morgan filed a FOIA petition in April 2024, claiming DSP had denied his request without explanation.

The AG made two findings. First, DSP did not violate FOIA by failing to respond. The agency proved through a sworn affidavit from its FOIA Coordinator that it actually mailed a denial letter on August 10, 2023, citing the investigatory-files exemption at 29 Del. C. § 10002(o)(3) and the records-of-pending-investigations exemption at § 10002(o)(6). Mr. Morgan apparently received the acknowledgment but not the denial letter, but the agency did its part.

Second, the substantive denial was proper. Under § 10002(o)(3), "investigatory files compiled for civil or criminal law-enforcement purposes" are categorically exempt from FOIA. Body camera, dash camera, helicopter footage, and dispatch communications generated during a police-citizen encounter are precisely the kind of records the exemption was written to cover. The AG cited its own recent opinion 24-IB11 for the proposition that records that on their face would initiate or document a police investigation fall within the exemption "on their face."

The petition was denied.

What this means for you

If you are trying to get body cam footage of a police encounter in Delaware

The opinion reads the investigatory-files exemption in § 10002(o)(3) categorically. It held the body camera, dash camera, and helicopter footage, plus the officer-dispatch communications, were exempt because "these records involve a law enforcement encounter precipitating a police investigation and are exempt on their face." It did not require the agency to itemize harm or balance the public interest, and it did not address any route to the records outside FOIA.

If you are a Delaware police records officer

The opinion turned on proof. DSP prevailed on the failure-to-respond claim because its FOIA Coordinator swore "under oath" that she "caused [the] response to the FOIA request to be mailed" on August 10, 2023, and attached a copy of that response. The opinion relies on Judicial Watch v. Univ. of Del. for the rule that factual representations must be "asserted under oath," not offered as an attorney's argument. On the merits, the opinion accepted a written denial citing § 10002(o)(3) and § 10002(o)(6) as a sufficient response.

If you are a journalist or civil-rights attorney covering Delaware police records

The opinion holds that records "compiled for civil or criminal law-enforcement purposes" are exempt on their face under § 10002(o)(3), and applies that to footage and dispatch communications from a police-citizen encounter. It draws on Op. 24-IB11, which held that "calls for service" records "which on [their] face, would initiate police investigation" are exempt. The opinion does not address whether any non-investigatory police records would fall outside the exemption.

Common questions

Q: Were the body camera and dash camera footage exempt here?
A: Yes. The opinion held the footage and dispatch communications "involve a law enforcement encounter precipitating a police investigation and are exempt on their face" under § 10002(o)(3), which exempts "[i]nvestigatory files compiled for civil or criminal law-enforcement purposes."

Q: What did the opinion rely on to reach that result?
A: It quoted the exemption text and cited Op. 24-IB11, which held that records that "on [their] face, would initiate police investigation" are exempt under § 10002(o)(3). The opinion treated the officer-citizen encounter footage as that kind of record.

Q: The petitioner thought DSP never responded. What did the opinion find?
A: The opinion found DSP did respond. DSP produced a copy of its August 10, 2023 denial letter and a sworn statement from its FOIA Coordinator that she "caused [the] response to the FOIA request to be mailed" that day, so the opinion found "the DSP did not violate FOIA by failing to respond."

Q: Why did the AG accept a sworn FOIA Coordinator statement rather than the agency lawyer's word?
A: The opinion cites Judicial Watch v. Univ. of Del. for the rule that "when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath," so that the determination rests on "competent evidence." The FOIA Coordinator's sworn statement met that standard.

Background and statutory framework

Delaware FOIA puts the burden of proof on the public body to show that an exemption applies, not on the requester to show that it does not. Section 10005(c). But "burden of proof" is satisfied by a clear citation to the exemption text and a factual showing that the records fall within it. For categorical exemptions like § 10002(o)(3), the showing can be very simple: identify the records, identify the law-enforcement purpose for which they were compiled, and the exemption applies.

The opinion quotes the operative language: "[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." It applies that text categorically, finding the footage exempt "on their face."

On the procedural side, the opinion relies on Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), for the rule that a public body must support factual claims with sworn personal-knowledge testimony rather than an attorney's argument. DSP satisfied that with its FOIA Coordinator's sworn statement that she caused the denial to be mailed.

The opinion's closest in-kind authority is Del. Op. Att'y Gen. 24-IB11 (Feb. 23, 2024), which held that a request for "calls for service" records "which on [their] face, would initiate police investigation" was exempt under § 10002(o)(3). The opinion applies the same "on its face" reasoning to the officer-citizen encounter footage and dispatch communications here.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions, including FOIA exemptions)
• 29 Del. C. § 10005 (Enforcement)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) (Delaware Supreme Court; sworn-evidence requirement)

Prior AG opinions:

• Del. Op. Att'y Gen. 24-IB11 (Feb. 23, 2024) (calls-for-service records exempt as investigatory files)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/05/22/24-ib19-05-22-2024-foia-opinion-letter-to-joshua-morgan-sr-re-foia-complaint-concerning-the-division-of-delaware-state-police-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/05/Attorney-General-Opinion-No.-24-IB20.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-IB20
May 22, 2024
VIA EMAIL
Joshua Morgan, Sr.
[email protected]

RE:

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

Dear Mr. Morgan:
We write regarding your correspondence alleging that the Division of the Delaware State
Police ("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
On July 7, 2023, you submitted a FOIA request to the DSP for records related to an incident
in January 2023, including video footage from the body camera, dash camera, and helicopter
camera and communications between the police officer and dispatch. The DSP acknowledged
receipt of your request via an email dated August 10, 2023, stating your request had been sent for
legal review. You filed this Petition in April 2024, providing a copy of your request and the DSP's
acknowledgement of receipt, which you allege denies the requested information for your case.
The DSP, through its legal counsel, replied to the Petition and provided the affidavit of its
FOIA Coordinator, who attests that she served as the FOIA Coordinator during the relevant time.
The DSP provided a copy of its response to your request dated August 10, 2023, which denied
access to these records pursuant to 29 Del. C. § 10002(o)(3) and 29 Del. C. § 10002(o)(6). The
FOIA Coordinator states under oath that on August 10, 2023, she "caused [this] response to the

FOIA request to be mailed." 1 In addition, the DSP argues that responsive records to this request
are exempt from FOIA, as the records and footage related to an incident with a police officer are
part of the DSP's investigatory files compiled for law enforcement purposes.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. 2 In certain
circumstances, a sworn affidavit may be required to meet that burden. 3 In this case, the Petition
cites to the DSP's acknowledgement of the request, arguing that you were denied access to the
information. To prove that it did in fact respond, the DSP provided a copy of the response letter
and a sworn statement from its FOIA Coordinator that this letter was mailed on August 10, 2023. 4
As such, we find that the DSP did not violate FOIA by failing to respond.
In addition, the DSP asserts that it appropriately invoked the investigatory files exemption
in Section 10002(o)(3), 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." We agree and
find no violation in this regard. The DSP's denial of these records under the investigatory files
exemption is proper, as these records involve a law enforcement encounter precipitating a police
investigation and are exempt on their face. 5

1

Response.

2

29 Del. C. § 10005(c).

3

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

4

Id. at 1010-11 ("Thus, the University is asking this Court to determine that it has met its
burden of proof, fully resolving the dispute, based solely on these factual representations. But the
resolution of a legal action must rest on competent, reliable evidence. And the Court has held that
when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted
under oath. A statement made under oath, like a sworn affidavit, will ensure that the court's
determination regarding the public body's satisfaction of the burden of proof is based on competent
evidence.").
5

Del. Op. Att'y Gen. 24-IB11, 2024 WL 1132324, at *2 (Feb. 23, 2024) ("This request
seeks information regarding the date and type of calls for service to the DSP from a particular
residence, which on its face, would initiate police investigation. Thus, the requested records are
exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).").
2

CONCLUSION
Accordingly, 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