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had been conducted and that the videos were not retained because of "technical issues caused by an old and outdated server system."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:
- Council meeting footage was produced. No FOIA issue.
- 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.
- 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 whose records have been lost or destroyed
This is one of FOIA's harder fact patterns. The agency's position (records existed but no longer do) effectively forecloses access. Under FOIA, your options:
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Verify the lost-records claim with specifics. Ask for: the model and age of the failed server; the date of the failure; the routine retention period for that footage type; whether any backup exists; whether the records were lost through ordinary system failure or through a discrete incident; whether other comparable footage from before the failure is intact.
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Cross-reference with other access channels. If the same footage was reviewed by the police or by an outside investigator (the Town's letter referenced an investigation), that investigator may have made a copy. That copy is potentially still available, even if the original is gone.
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Look for non-video records. Camden's response ducked an important question: was there an incident report or police report related to the August 5 night that referenced what the cameras showed? Witness statements, dispatch logs, building security logs, after-action reports often capture the same content the camera footage would have shown.
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If you suspect destruction was deliberate, that's a separate issue. Spoliation of records during or in anticipation of an investigation can have legal consequences beyond FOIA. Contact the Civil Rights and Public Trust Division of the Delaware DOJ (302-577-5400).
If you handle records management at a Delaware municipality
The Camden situation is a textbook case of why records-retention policies matter. Best practices:
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Modernize critical surveillance systems. Old servers fail, and when they do, important records disappear. Annual server health reviews, scheduled replacements, and backup-to-cloud or backup-to-secondary-server are now standard.
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Establish written retention schedules. State Archives schedules apply to municipal records. Camera footage of public spaces typically should be retained for a specific period (often 30-90 days for routine footage, longer for incident-related footage). Without a written schedule, "lost" can shade into "destroyed."
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Affidavit the loss properly. When records are genuinely gone, the sworn statement should: identify the original system, the cause of loss, the date discovered, attempts at recovery, and the absence of backups. The Town Manager's affidavit here was minimal but effective; more detail would have been better.
If your concern is police accountability in Camden or similar small towns
The AG's office has limited FOIA jurisdiction. The substantive concern (alleged coercion to drop a complaint against a councilman) is investigated through different channels:
- Delaware DOJ Civil Rights and Public Trust Division (302-577-5400). They handle complaints about official conduct, including police misconduct and conflicts of interest.
- Council on Police Training (COPT) for officer-conduct issues.
- Internal Affairs at the Camden Police Department for departmental-discipline complaints.
- Local prosecutor or AG criminal division for criminal misconduct.
FOIA cannot resolve those issues. It can sometimes help by surfacing supporting records, but the substantive complaint goes elsewhere.
If you are a small-town councilmember or resident concerned about transparency
Camden's response to this petition was correct on FOIA but reveals broader concerns: a single Town Hall with apparently degraded surveillance infrastructure, no apparent incident report cross-referencing the footage, and a request that originated from a person alleging police-chief coercion. These are organizational red flags that do not fit FOIA's framework but deserve attention.
If you serve on the Camden Town Council or a similar body, an audit of records-retention practices, security system modernization, and a clearer separation between police chief and council member roles would all reduce the kinds of FOIA disputes that wind up before the AG.
Common questions
Q: Does FOIA require a public body to produce records that no longer exist?
A: No. Op. 20-IB13 (March 2020) confirmed: FOIA does not require production of records that do not exist, regardless of the reason for non-existence (never created, lost, destroyed under retention schedule, or destroyed in error).
Q: What if the records were destroyed deliberately?
A: That is a separate issue. The Delaware Public Records Act and State Archives retention schedules govern how long agencies must keep records. Deliberate destruction in anticipation of a request, or to obstruct an investigation, can be a criminal matter (obstruction, evidence tampering) and a civil matter (spoliation). The AG cannot adjudicate that under FOIA, but the AG's criminal division can.
Q: Is a "we lost the records" affidavit enough?
A: It depends on how detailed it is. Camden's affidavit was supported by the security vendor's explanation, which strengthened it. A bare assertion ("we don't have it") usually fails Judicial Watch's standard. A specific explanation (server age, failure mode, no backups) usually succeeds.
Q: Why can't the AG investigate the coercion allegation?
A: Section 10005(e) limits the AG's FOIA authority to determining "whether a violation of [FOIA] has occurred or is about to occur." Other complaints go through other channels.
Q: What if I think the lost-records story is a cover?
A: Document the timing. If records are lost specifically for the period you asked about but are intact for adjacent periods, that is suspicious. If the loss is described differently in different forums, that is suspicious. Bring concerns to the Civil Rights and Public Trust Division or to a private attorney for civil action.
Q: Can I sue?
A: Section 10005(b) gives 60 days to file in Superior Court for FOIA violations. The court has more procedural tools (formal discovery, depositions, document subpoenas) and can examine the lost-records story more closely than the AG petition process allows.
Background and statutory framework
FOIA does not create records. Op. 20-IB13 (Mar. 30, 2020) and a long line of similar opinions hold that FOIA is an access law, not a records-creation law. If records do not exist, FOIA cannot compel production.
Burden of proof and Judicial Watch. Section 10005(c) places the burden on the public body. Judicial Watch v. Univ. of Del., 267 A.3d 996, 1012 (Del. 2021), requires sworn statements describing the search and result. The Town Manager's affidavit met that standard.
AG's limited authority. Section 10005(e) gives the AG authority over FOIA violations only. Op. 18-IB50 (Oct. 12, 2018) (no authority to interpret other Delaware statutes); Op. 21-IB10 (May 2021) (legality of other statutes outside FOIA scope). The AG repeatedly declines to expand its jurisdiction into substantive matters that overlap with FOIA but are not FOIA themselves.
Retention failures vs. FOIA violations. Records-retention obligations come from the Delaware Public Records Act (Title 29, Chapter 5) and State Archives schedules. FOIA does not impose retention duties directly. A retention failure that produces a "lost records" outcome is, under FOIA, a no-violation finding. Whether the retention failure itself is actionable depends on other authorities.
Camera footage retention norms. Most Delaware municipalities follow informal industry-standard retention for routine security camera footage (30-90 days). Specific incidents may trigger longer retention, but only if the agency knows to flag the footage. An aging server's automatic overwrite cycle can outpace incident-flagging.
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