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 have been cited or stopped by a Fish and Wildlife officer
You generally cannot get the body-camera footage of your own incident through FOIA. The investigatory files exemption is categorical, not balancing, so the public-interest weight of your situation does not change the analysis.
Better routes:
- Through your defense in the underlying enforcement case. If you have been cited or charged, your attorney can request the footage through criminal discovery or administrative-hearing discovery rules. Discovery is broader and more practical than FOIA for this purpose.
- Through a civil action. If you are pursuing a civil rights or false-arrest claim, footage will normally be available through litigation discovery.
- Through the police complaint process. If your concern is officer conduct, the DNREC Office of Internal Affairs (or the Civil Rights and Public Trust Division of the Delaware DOJ at 302-577-5400) is the right intake.
If you are a journalist covering wildlife, boating, or environmental enforcement
Two practical takeaways:
- Footage of any encounter where a citation issues is presumptively investigatory. Asking for "footage" and "radio" is a clean denial under § 10002(o)(3). You may have more luck asking for non-investigatory records: dispatch summaries, complaint logs by location/date, citation counts and types, vessel-stop statistics. Aggregate enforcement data is generally more accessible than incident-specific media.
- DNREC's body-worn camera rule (1 Del. Admin. C. § 801-26.16) operates as a statutory exclusion through § 10002(o)(6). Even if a court someday narrowed the investigatory-files exemption, DNREC has a regulatory backstop for camera footage. Strategic FOIA design should account for both layers.
If you are a DNREC officer or DNREC FOIA coordinator
This opinion confirms the lighter-burden pathway. If a request seeks records that on their face fall within an exemption, the public body does not need to file a Judicial Watch-style affidavit explaining its search. Recommended workflow:
- For requests that name a specific incident, citation, or officer encounter, deny under § 10002(o)(3) with a brief, accurate citation to the exemption.
- Reserve sworn affidavits for cases where the exemption depends on contested facts (for example, "the document is part of a closed but related investigation") or where the requester challenges the existence of records.
- Even where an affidavit is not required, document your file with the rationale and exemption analysis. If the requester petitions and you have to produce a Response, your contemporaneous file makes the analysis easier.
If you are a hunter, angler, or boater concerned about enforcement encounters
Two practical points. First, you can almost always request your own ticket number, citation, and the official summons through normal court records once a charge is filed. Second, if there is no charge filed and the officer's stop did not result in any enforcement action, you may have better luck. Some Fish and Wildlife "warning" or "no-action" stops do not generate investigatory files, and routine non-enforcement footage is harder to characterize as exempt.
Common questions
Q: Why was DNREC's denial proper without a sworn affidavit?
A: Because the request was facially investigatory. A request for "body cam footage and dispatch/radio recordings" tied to a citation is, by its own terms, a request for records of an officer's enforcement encounter. Judicial Watch v. Univ. of Del. (Del. 2021) requires a sworn affidavit only when it is unclear on the face of the request that an exemption applies.
Q: Are Fish and Wildlife officers really law enforcement?
A: Yes. Section 8003A of Title 29 makes DNREC enforcement officers law enforcement when they enforce DNREC laws, regulations, and permits. They have "police powers similar to those of constables, peace officers, and other police officers."
Q: Does it matter that the citation was for a minor offense?
A: No. The investigatory files exemption does not turn on the seriousness of the underlying offense. Once a record is part of an investigatory file, it is not a "public record" under FOIA.
Q: Could I get the records if the case is fully closed?
A: Probably not under FOIA alone. Delaware's investigatory files exemption survives the close of the case (News-Journal Co. v. Billingsley, 1980). You would need a separate authority such as discovery in a civil suit or a public records action that narrowly carves out specific document types.
Q: What about my own statements or the citation I was issued?
A: The actual citation document is normally available through the issuing court once filed. Your own statements may be obtainable through criminal or civil discovery if litigation is underway. FOIA is rarely the right tool for incident-specific material.
Q: Can I sue to challenge the AG's determination?
A: Section 10005(b) lets a citizen file in Superior Court within 60 days. To win you would need to overcome the categorical investigatory-files reading, which Delaware courts have been reluctant to disturb.
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 Delaware AG and courts have read this categorically: once a record qualifies, it is not a "public record" within FOIA's reach. The exemption applies whether or not the investigation has closed.
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