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 and supplied that acknowledgment, which he alleged denied the requested information.

The AG made two findings. First, DSP did not violate FOIA by failing to respond. The agency supplied its August 10, 2023 denial letter, citing § 10002(o)(3) and § 10002(o)(6), and its FOIA Coordinator swore that she caused the letter to be mailed that day.

Second, the substantive denial was proper. Section 10002(o)(3) exempts "investigatory files compiled for civil or criminal law-enforcement purposes." The AG found the requested records involved "a law enforcement encounter precipitating a police investigation" and were exempt on their face. It cited Opinion 24-IB11, which concerned calls for service from a particular residence.

The AG found no FOIA violation in DSP's denial of these records.

What this means for you

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

The opinion held the requested footage and officer-dispatch communications exempt because "these records involve a law enforcement encounter precipitating a police investigation and are exempt on their face." It did not address any route to the records outside FOIA.

If you are a Delaware police records officer

DSP prevailed on the failure-to-respond claim because it supplied a copy of the response and its FOIA Coordinator swore that she "caused [this] response to the FOIA request to be mailed" on August 10, 2023. The opinion says a sworn affidavit may be required in certain circumstances to meet a public body's burden of proof; it quotes Judicial Watch, Inc. v. Univ. of Del. on putting an attorney's personal-knowledge factual claims under oath. On the merits, the AG held the denial proper under § 10002(o)(3).

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

The opinion holds these requested records exempt under § 10002(o)(3) because they involve a law enforcement encounter precipitating a police investigation. It draws on Op. 24-IB11, which held that records about calls for service from a particular residence were exempt because they "on [their] face, would initiate police investigation." The opinion does not address other categories of police records.

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 [this] 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: What evidence showed that DSP mailed its response?
A: The opinion says a sworn affidavit may be required in certain circumstances to meet the public body's burden. DSP provided both the response letter and the coordinator's sworn statement that she caused it to be mailed. The opinion quotes Judicial Watch, Inc. v. Univ. of Del.: "when an attorney seeks to establish facts based on personal knowledge, those facts must be asserted under oath."

Background and statutory framework

The opinion states that a public body has the burden of proof to justify denying access to records under 29 Del. C. § 10005(c), and that a sworn affidavit may be required in certain circumstances. To resolve the response dispute here, the AG relied on DSP's copy of the denial letter and the FOIA Coordinator's sworn statement that she caused it to be mailed.

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 finds these requested records exempt "on their face" because they involve an encounter precipitating a police investigation.

On the response issue, the opinion cites Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), and quotes its rule for an attorney seeking to establish facts from personal knowledge. DSP supplied the 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