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
This is a hard road through FOIA. The investigatory files exemption is broad, and the AG reads it categorically: if the records were "compiled for civil or criminal law-enforcement purposes," they are exempt without the agency having to itemize harm or balance interests. That covers body cam, dash cam, helicopter footage, dispatch logs, officer reports, and most contemporaneous documentation.
Realistic alternatives:
- Discovery in litigation. If you have a civil-rights or personal-injury claim arising from the encounter, your attorney can subpoena the records through normal civil discovery. That bypasses the FOIA exemption entirely.
- Criminal-case discovery. If you were charged in connection with the incident, your defense attorney has discovery rights under criminal procedure (Brady, Rule 16) that include exculpatory body cam footage.
- Wait for the case to close. Some agencies will release closed-case footage administratively or in response to a renewed FOIA request, since "pending" investigation status no longer applies. The exemption text is broader than just "pending," but practice often softens after a case is closed and reviewed.
- Request through the DOJ's Division of Civil Rights and Public Trust for officer-involved incidents that triggered an OIS (officer-involved shooting) or use-of-force review. Some review materials get released as part of public reports.
- Ask Delaware legislators to amend the exemption. Several states have moved to require release of body cam footage involving serious uses of force after a fixed time period.
If you are a Delaware police records officer
Two procedural points worth carrying forward:
- Document your responses. DSP won the timeliness claim only because the FOIA Coordinator gave a sworn statement, not just an attorney's representation, that the response was mailed on August 10, 2023. Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), Delaware courts will not accept attorney representations as proof of underlying facts; the person with personal knowledge has to swear to it.
- A short, written denial citing the specific exemption is a valid FOIA response. You don't have to itemize each record or explain the exemption in depth. "These records are exempt under § 10002(o)(3) because they are investigatory files compiled for law-enforcement purposes" is enough.
If you are a journalist covering Delaware police accountability
The investigatory files exemption is the practical brick wall for police-records FOIA in Delaware. Track:
- Closed-case requests where the exemption logic weakens.
- OIS and use-of-force reports issued by the DOJ's Division of Civil Rights and Public Trust, which sometimes include underlying footage in public reports.
- Patterns where the same agency uses the exemption to withhold patrol-related, non-investigatory records (training materials, policy manuals, statistical aggregates). Those are not "investigatory files" by their nature and the exemption shouldn't reach them.
If you are a civil-rights attorney
This opinion confirms that pre-suit FOIA is rarely the right path for police-encounter records. Plan to use civil discovery instead. File the lawsuit, then issue subpoenas.
Common questions
Q: Are body camera and dash camera footage always exempt from Delaware FOIA?
A: When they document a police-citizen encounter that became (or could have become) a law-enforcement investigation, yes. The AG reads § 10002(o)(3) categorically: if the record was "compiled for civil or criminal law-enforcement purposes," it is exempt regardless of harm. Footage of routine traffic stops, arrests, and police calls falls within that scope on its face.
Q: What about a closed case? Does the exemption still apply?
A: The text of § 10002(o)(3) is not limited to pending matters; it covers "investigatory files compiled for civil or criminal law-enforcement purposes including pending investigative files." That "including pending" language is broad and the AG has not narrowed it for closed files. Section 10002(o)(6) is a separate exemption for records of pending investigations specifically. Practically, closed-case requests sometimes get partial release, but legally, the agency can still invoke the exemption.
Q: Does Delaware have a separate police body cam release law?
A: Not as a general right. Delaware created body cam programs through grants and policy, not through a public-disclosure mandate.
Q: My request was acknowledged but I never got a substantive response. What now?
A: This case shows that the agency might have actually mailed a response that you did not receive. File a FOIA petition under § 10005 with the AG. The agency will have to produce its records of when and how it responded. If there really was no response, the AG will direct it to respond. If the response was sent but lost in the mail, you will at least learn what the agency said.
Q: Why did the AG accept a sworn FOIA Coordinator affidavit instead of just the agency's lawyer's word?
A: Judicial Watch v. Univ. of Del., 267 A.3d 996, 1011 (Del. 2021) requires sworn personal-knowledge testimony when an agency is asking the AG or a court to find facts in its favor. An attorney's representation is argument, not evidence. The FOIA Coordinator who actually handled the request and the mailing has personal knowledge; she swore to it under oath; that is competent evidence of compliance.
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 exemption itself is broad. "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" is the operative language. Federal FOIA's analogous provision at 5 U.S.C. § 552(b)(7) is narrower (it requires showing of specific harm). Delaware's exemption is stronger for agencies because it is categorical.
The procedural side is also important. Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), a public body asserting compliance has to produce sworn evidence from someone with personal knowledge, not just a lawyer's argument. That decision applies whenever the agency wants to win on a factual question (was the response mailed, were the records exempt as a factual matter, is the affidavit sufficient). Agencies that learned this lesson after 2021 routinely now provide FOIA Coordinator affidavits.
The AG's recent opinion 24-IB11 (Feb. 23, 2024) is the closest in-kind precedent: a request for "calls for service" records to a residence was held exempt because such records "would initiate police investigation" on their face. The AG carries that "on its face" reasoning into 24-IB20: body cam and dispatch footage of an officer-citizen encounter is the textbook example of an investigatory file.
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