Can a Delaware game warden's body-camera footage from a citation incident be released through FOIA, or is it exempt as an investigatory file?

Plain-English summary

Casey Hall asked DNREC for body-camera footage and dispatch/radio recordings from a specific Fish and Wildlife officer for a 2.5-hour window on May 25, 2024, plus written reports tied to the ticket number from that incident, and the partner officer's body-camera footage from the same vessel. DNREC denied the request, citing three exemptions: investigatory files (§ 10002(o)(3)), statutory exclusion under DNREC's body-worn camera regulation (§ 10002(o)(6) read with 1 Del. Admin. C. § 801-26.16), and pending or potential litigation (§ 10002(o)(9)).

The AG agreed with the investigatory-files reasoning and did not need to reach the other two grounds. Section 8003A makes DNREC enforcement officers police officers when they enforce DNREC laws and regulations. A request for "body cam footage and dispatch/radio recordings" tied to a citation incident is a request for the audio and visual record of an officer doing law-enforcement work; on its face the record is investigatory.

The AG cited a key procedural point from Judicial Watch v. Univ. of Del. (Del. 2021): a public body usually has to file a sworn affidavit explaining its search and exemption analysis. But "unless it is clear on the face of the request that the demanded records are not subject to FOIA," the affidavit is required. Here, the request was clear on its face, so DNREC did not need to file an affidavit at all. The exemption applied directly from the request's terms.

What this means for you

If you were cited or stopped by a Fish and Wildlife officer and want the footage

The opinion holds that body-camera footage and dispatch/radio recordings tied to a citation incident are investigatory files exempt under § 10002(o)(3), because DNREC enforcement officers exercise police powers when enforcing DNREC laws (§ 8003A) and a request for the recordings of such an encounter is investigatory on its face. The opinion adds that, because the request was clear on its face that the records were exempt, DNREC did not even have to file a sworn affidavit explaining its search.

If you are a journalist covering wildlife, boating, or environmental enforcement

For this fact pattern, the opinion treats footage and radio recordings of an officer's citation encounter as facially investigatory and exempt under § 10002(o)(3). The AG resolved the petition on that ground alone and did not reach DNREC's other asserted exemptions (the body-worn-camera regulation through § 10002(o)(6), and pending or potential litigation under § 10002(o)(9)).

If you are a Delaware public body responding to a records request

The opinion confirms the Judicial Watch rule that, while a public body usually must state under oath the efforts taken to find responsive records, no sworn affidavit is required when it is clear on the face of the request that the demanded records are not subject to FOIA. Here the request's own terms placed the records within the investigatory-files exemption.

Common questions

Q: Why was DNREC's denial proper without a sworn affidavit?
A: The opinion holds that under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), a public body need not state under oath its search efforts when it is clear on the face of the request that the records are not subject to FOIA. The request for body-cam footage and dispatch/radio recordings of a citation incident was facially investigatory.

Q: Are Fish and Wildlife officers law enforcement for this purpose?
A: Yes. The opinion cites § 8003A, under which DNREC officers must enforce DNREC laws, regulations, and permits and "have police powers similar to those of constables, peace officers, and other police officers" when doing so.

Q: Which exemption did the AG actually rely on?
A: Only the investigatory-files exemption, § 10002(o)(3). DNREC had also asserted § 10002(o)(6) (via the body-worn-camera regulation, 1 Del. Admin. C. § 801-26.16) and § 10002(o)(9) (pending or potential litigation), but the opinion found the investigatory-files exemption sufficient and did not reach the others.

Background and statutory framework

The investigatory files exemption. Section 10002(o)(3) excludes "[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." The opinion treats records arising from an incident in which DNREC law-enforcement officers responded as investigatory on their face.

DNREC officers as law enforcement. Section 8003A of Title 29 specifically vests DNREC enforcement officers with police powers when they enforce DNREC laws, regulations, rules, permits, licenses, orders, and program requirements. That clean grant of police authority is the hinge for the investigatory-files exemption: a Fish and Wildlife officer issuing a vessel citation is, for FOIA purposes, in the same posture as a Delaware State Trooper writing a traffic ticket.

Body-worn camera rule as a statutory exclusion. DNREC's body-worn camera regulation (1 Del. Admin. C. § 801-26.16) restricts disclosure of camera footage in specific ways. Section 10002(o)(6) of FOIA excludes from "public record" anything that is excluded by other statute or regulation. DNREC argued that this regulation, combined with the FOIA cross-reference, independently exempts the footage. The AG did not have to reach this argument because the investigatory-files exemption was sufficient on its own.

Burden of proof and the Judicial Watch caveat. Section 10005(c) places the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1011-12 (Del. 2021), held that a public body opposing a FOIA petition normally has to make sworn factual statements about its search. The same opinion contains a built-in escape: if "it is clear on the face of the request that the demanded records are not subject to FOIA," sworn factual support of search efforts is not required. The AG applied that escape here.

Citations and references

Statutes:

• 29 Del. C. § 8003A (DNREC enforcement officer powers)
• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10002 (Definitions and exemptions)
• 29 Del. C. § 10005 (Enforcement, burden of proof)
• 1 Del. Admin. C. § 801-26.16 (DNREC body-worn camera rule)

Cases:

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

Prior AG opinions:

• Del. Op. Att'y Gen. 24-IB11 (Feb. 23, 2024) (police calls-for-service request facially investigatory)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/07/12/24-ib27-07-12-2024-foia-opinion-letter-to-casey-hall-re-foia-complaint-concerning-the-delaware-department-of-natural-resources-and-environmental-control/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/07/Attorney-General-Opinion-No.-24-IB27.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-IB27
July 12, 2024
VIA EMAIL
Casey Hall
[email protected]

RE:

FOIA Petition Regarding the Delaware Department of Natural Resources and
Environmental Control

Dear Casey Hall:
We write regarding your correspondence alleging that the Delaware Department of Natural
Resources and Environmental Control ("DNREC") 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 DNREC did not violate FOIA
by denying access to the requested records.

BACKGROUND
On May 28 2024, you submitted a request to DNREC for "all body cam footage and
dispatch/[r]adio recordings" from a certain DNREC Fish and Wildlife officer "for the following
date 5/25/2024 from time 1530-1800" and any written reports in that timeframe regarding the
ticket number assigned to this incident. You also sought a copy of the body camera footage of this
officer's partner that you noted was on the vessel at this time. DNREC denied access to these
requested records under 29 Del. C. § 10002(o)(3), which exempts "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" and 29 Del. C. § 10002(o)(9) for "any records pertaining to pending or potential
litigation which are not records of any court." In addition, DNREC asserted 29 Del. C. §
10002(o)(6), which exempts any records that are statutorily excluded from public disclosure,

because the records are exempt from disclosure based on 1 Del. Admin. C. § 801-26.16. This
Petition followed, requesting review of DNREC's denial of this request.
DNREC, through its legal counsel, replied to this Petition ("Response"), arguing that its
response was proper. DNREC states that this request is for records related to an incident in which
a DNREC Fish and Wildlife officer issued a citation. DNREC contends that these investigatory
records are exempt under Section 10002(o)(3), as the DNREC officers are law enforcement
officers with police powers similar to other law enforcement agencies, such as the Delaware State
Police.

DISCUSSION
The public body has the burden of proof to justify its denial of access to records. 1 In certain
circumstances, a sworn affidavit may be required to meet that burden. 2 However, when a request
is clear on its face that the records sought are not subject to FOIA, a public body need not state
under oath its efforts to determine whether there are responsive records to meet its burden. 3 In this
case, DNREC contends that the requested records are exempt from disclosure pursuant to 29 Del.
C. § 10002(o)(3). Section 10002(o)(3) pertains to "investigatory files compiled for civil or
criminal law-enforcement purposes." DNREC's law enforcement officers must "see to the
enforcement of all laws, regulations, rules, permits, licenses, orders, and program requirements
of" DNREC and "have police powers similar to those of constables, peace officers, and other
police officers when enforcing the laws, regulations, rules, permits, licenses, orders, and program
requirements of" DNREC. 4 This request is for records arising from an incident in which these law
enforcement officers responded, necessitating an investigation; these investigatory records are
exempt on their face. 5 We find that no violation occurred, as DNREC appropriately denied access
to these records pursuant to the investigatory files exemption.

1

29 Del. C. § 10005(c).

2

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

3

Id. at 1012 ("Thus, we hold that unless it is clear on the face of the request that the
demanded records are not subject to FOIA, to meet the burden of proof under Section 10005(c), a
public body must state, under oath, the efforts taken to determine whether there are responsive
records and the results of those efforts.").
4

5

29 Del. C. § 8003A.

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 [Delaware State Police]
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 DNREC did not violate FOIA by denying access to the
requested records.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc:

Devera B. Scott, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General

3