If a Delaware town's old security-camera server lost video footage I asked for, do I have any FOIA recourse, and can the AG investigate the underlying incident?

Plain-English summary

Branden Moore submitted a FOIA request to the Town of Camden on August 8, 2024 for three things: audio/video of the August 5, 2024 Town Council meeting, video of the first-floor elevator lobby from 8:30-9:30 PM that night, and video of the front parking lot of the Town Hall from 6:45-7:30 PM. The Town did not initially fulfill the elevator and parking-lot portions, telling Moore that an investigation had been conducted and that the videos were not retained because of "technical issues caused by an old and outdated server system."

Moore petitioned. He also alleged that the Camden Chief of Police had coerced him to not file a complaint against a councilman.

The Town responded with a sworn affidavit from the Town Manager. Three points: (1) Moore had picked up a thumb drive on August 23 with the Council meeting audio/video, (2) Advantech (the security/camera vendor) had explained why the additional footage could not be produced, (3) the Town Manager certified all of the Response statements as true and correct.

The AG ruled for the Town. Three holdings:

1. Council meeting footage was produced. No FOIA issue.
2. Elevator and parking-lot footage no longer exists. Under FOIA precedent (Op. 20-IB13, 2020), no public body has to produce records that do not exist. The Town's sworn affidavit, supported by the vendor's explanation, met the Judicial Watch standard.
3. The coercion allegation is outside FOIA. Under § 10005(e), the AG can only adjudicate FOIA violations. Allegations of police misconduct or coercion belong to other channels (Op. 21-IB10, 18-IB50).

What this means for you

If you are a Delaware FOIA requester told your records no longer exist

The opinion holds that FOIA does not require a public body to produce a record that does not exist. The Town produced the August 5 Council meeting audio/video on a thumb drive, and the AG accepted that the additional elevator-lobby and parking-lot footage no longer existed because the Town backed that assertion with a sworn, notarized statement from the Town Manager and the security vendor's written explanation of why the footage could not be produced. For the requester, that ends the FOIA inquiry: where the record genuinely does not exist, there is no FOIA violation to remedy.

If you handle records or FOIA responses for a Delaware public body

The opinion confirms how a public body carries its § 10005(c) burden when the records asked for are gone. Under Judicial Watch v. Univ. of Del., the body must state under oath the efforts taken to find responsive records and the results. Camden met that burden with the Town Manager's sworn, notarized certification that the Council footage was provided and that the vendor had explained why the remaining footage did not exist. A sworn statement plus a supporting explanation, not a bare denial, is what satisfied the standard here.

If your underlying concern is something other than records access

Moore also alleged that the Camden police chief had coerced him not to file a complaint against a councilman. The opinion holds that this falls outside the AG's FOIA authority: under § 10005, this Office determines only whether a FOIA violation has occurred, and it "cannot make determinations of whether statutes other than FOIA have been violated." The opinion does not resolve the coercion allegation in either direction; it simply states the allegation is not a FOIA question.

Common questions

Q: Does FOIA require a public body to produce records that no longer exist? A: No. The opinion relies on Op. 20-IB13 (Mar. 30, 2020) for the rule that FOIA does not require a public body to provide a record that does not exist.

Q: What does a public body have to do to prove the records are really gone? A: Under Judicial Watch v. Univ. of Del., 267 A.3d 996 (Del. 2021), and § 10005(c), the body bears the burden and, in appropriate circumstances, must state under oath the efforts taken to determine whether responsive records exist and the results. Here the Town Manager's sworn, notarized statement, plus the security vendor's explanation, met that burden.

Q: Why didn't the AG address the alleged coercion by the police chief? A: The opinion explains that under § 10005 the AG decides only whether FOIA was violated and cannot determine whether other Delaware statutes were violated, citing Op. 21-IB10 (May 4, 2021) and Op. 18-IB50 (Oct. 12, 2018).

Background and statutory framework

FOIA does not create records. The opinion cites Op. 20-IB13 (Mar. 30, 2020) for the settled rule that FOIA is an access law: if a record does not exist, FOIA cannot compel its production.

Burden of proof and Judicial Watch. Section 10005(c) places the burden on the public body to justify denial of access. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021), holds that, unless it is clear on the face of the request that the records are not subject to FOIA, the body must state under oath the efforts taken to find responsive records and the results. The Town Manager's sworn statement met that standard.

Limits on the AG's FOIA authority. The opinion notes, citing Op. 21-IB10 (May 4, 2021) and Op. 18-IB50 (Oct. 12, 2018), that this Office has no authority under FOIA to decide whether statutes other than FOIA have been violated. The coercion allegation therefore fell outside the petition.

Citations and references

Statutes:

• 29 Del. C. § 10001 (FOIA purpose)
• 29 Del. C. § 10005 (Enforcement, AG authority)

Cases:

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

Prior AG opinions:

• Del. Op. Att'y Gen. 20-IB13 (Mar. 30, 2020) (no duty to produce nonexistent records)
• Del. Op. Att'y Gen. 21-IB10 (May 4, 2021) (legality of statutes other than FOIA outside AG's authority)
• Del. Op. Att'y Gen. 18-IB50 (Oct. 12, 2018) (no authority to interpret other Delaware statutes)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/10/08/24-ib41-10-08-2024-foia-opinion-letter-to-branden-moore-re-town-of-camden/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/10/Attorney-General-Opinion-No.-24-IB41.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-IB41
October 8, 2024

VIA EMAIL
Branden Moore
[email protected]

RE:

FOIA Petition Regarding Town of Camden

Dear Mr. Moore:
We write in response to your correspondence, alleging that the Town of Camden ("Town") violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008 ("FOIA"). We treat this 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 conclude that the Town did not violate FOIA.

BACKGROUND
On August 8, 2024, you submitted a FOIA request to the Town. Specifically, you requested audio and video footage from August 5, 2024 covering: the entire Town Council Meeting that took place that day; the first-floor elevator lobby from 8:30-9:30 pm; and the front parking lot of the Town Hall from 6:45-7:30 pm.1 The Town did not fulfill your request, instead providing you with

1

Petition, p. 4.
1

an explanation that an investigation was conducted and the videos you requested were not retained due to technical issues caused by an old and outdated server system.2 This Petition followed.3 On September 18, 2024, the Town, through its legal counsel, responded to the Petition. The Response stated that on August 23, 2024, you picked up a thumb drive from the Town containing audio and video footage of the August 5, 2024 Town meeting.4 You were also provided the correspondence you included with your Petition.5 The correspondence was from Advantech, who is in charge of the security and cameras on the property at the Town Hall of Camden.6 It explained why the Town could not produce the additional audio and video footage requested of the first-floor elevator lobby or the front parking lot.7 The Town Manager certified that all the statements made in the Town's Response were true and correct in a sworn and notarized statement included in the Response.8

DISCUSSION
In any action brought under Section 10005, the public body has the burden of proof to justify its denial of access to records.9 In certain circumstances, a sworn affidavit may be required to meet that burden.10 The Town provided a sworn statement from the Town Manager affirming that the Town provided the requested audio and video footage of the August 5, 2024, contacted

2

Petition, p. 5.

3

To the extent your Petition alleges that Chief Witney coerced you to not file a report against Councilman Dan Woodhall of the Camden Town Council, this Office cannot make determinations of whether statutes other than FOIA have been violated or may be violated. See, e.g., Del. Op. Att'y Gen. 21-IB10, (May 4, 2021) (finding that "legality of the FOIA statute and other Delaware statutes...are outside the scope of this Office's statutory authority to opine on"); Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015767, at *2 (Oct. 12, 2018) (finding that this Office has "no authority under FOIA to direct [the public body] with regard to this Office's interpretation of any other Delaware statute"). 4

Response, p. 2.

5

Id.

6

Id.

7

Id.

8

Id.

9

29 Del. C. § 10005(c).

10

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021). 2

the entity in charge of the security and cameras on the property at the Town Hall of Camden and was informed that remaining requested audio and video footage did not exist.11 FOIA does not require a public body to provide a record that does not exist.12 We find that the Town sufficiently supported its assertions that it provided you one of the records you requested and that the two remaining records do not exist.

CONCLUSION
For the reasons set forth above, we conclude that the Town did not violate FOIA.

Very truly yours,
/s/ Carla A.K. Jarosz
________
Carla A.K. Jarosz
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
________
Patricia A. Davis
State Solicitor

cc:

Gregory A. Morris, Esquire, Attorney for the Town of Camden

11

Id. at 1012 ("[U]nless 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."). 12

Del. Op. Atty. Gen. 20-IB13, 2020 WL 1894026 (Mar. 30, 2020) (internal citation omitted). 3