If I'm in a Delaware civil case from a car crash, can I FOIA the police body camera and dashboard footage instead of going through court discovery?
Plain-English summary
Attorney Matthew O'Byrne represented a party involved in a July 2023 vehicle accident. He filed a FOIA request with the Delaware State Police for the body camera footage, dashboard footage, and photographs taken by the responding officers. He needed the material for the case. DSP denied the request, citing three separate FOIA exemptions: investigatory files, criminal files, and pending litigation. He petitioned the AG.
The Chief Deputy AG sided with DSP on all three grounds.
Investigatory files (Section 10002(o)(3)). This exemption covers files compiled for civil or criminal law-enforcement purposes. The opinion confirms a Delaware-courts rule that may surprise non-FOIA practitioners: the investigatory files exemption attaches as soon as the agency is "made aware of a potential issue," and it survives even after the investigation is closed. The accident triggered law-enforcement engagement (citations were issued), so the records fell squarely inside this exemption.
Criminal files (Section 10002(o)(4)). This is a different exemption that closes "criminal records and files" to the public, regardless of any privacy analysis. The opinion is blunt: a person can get a copy of their own criminal record (subject to redactions), but criminal files are closed. There is no exception for "I am the criminal defendant's lawyer" or "no privacy interest is implicated."
Pending litigation (Section 10002(o)(9)). This is the exemption most squarely on point given who was asking. Records "pertaining to pending or potential litigation which are not records of any court" are not public records when the public body itself is a party to the case (here, DSP issued the citations and is the prosecuting party in the JP Court traffic matter). The opinion repeats a long-standing Delaware rule: FOIA "is not intended to supplant, nor even to augment, the courts' rules of discovery." If you want the footage, file a discovery request in the case.
What this means for you
If you're a Delaware personal injury or insurance defense attorney
This opinion is the cleanest recent statement that FOIA is not a discovery shortcut for body cam and dash footage when DSP is a party to a related criminal traffic case. Three things to take away:
- The investigatory-files exemption survives after the investigation closes. So waiting until the criminal traffic matter ends and re-filing the FOIA request later does not enable the footage on its own.
- The pending-litigation exemption applies whenever DSP is itself a party to litigation that the records pertain to. A traffic citation in JP Court is enough.
- The path that works is a discovery subpoena in the civil case (or in the underlying criminal matter, depending on your client's position). DSP's cooperation under court rules is governed by different standards than FOIA.
If your client is the defendant in the underlying citation case, your defense counsel in that JP Court matter has discovery tools FOIA does not give you.
If you're a journalist seeking body cam footage from an incident
This opinion does not directly address journalist requests, but the reasoning carries over. As long as DSP is a party to active litigation arising from the incident (criminal charges, citations, or civil exposure), expect denial under at least the pending-litigation exemption. Once that litigation truly closes, the criminal files exemption can still apply. Body cam access in Delaware is much narrower than in some neighboring states.
If you're a member of the public who was filmed by DSP body cameras
You can request your own personal criminal record, but not the underlying criminal file. The distinction is small but matters. If you were a bystander or victim, your access is even narrower under these exemptions.
If you work in DSP records or another Delaware law-enforcement records office
The opinion validates a layered denial: invoke all applicable exemptions rather than picking one. The opinion analyzed each exemption independently and found each one sufficient on its own. Layered denial protects against losing if a court later disagrees on one ground.
Common questions
Q: Doesn't body cam footage of a public road interaction belong to the public?
A: Many people assume yes, but Delaware FOIA does not work that way. The exemptions are categorical: if a record is in an investigatory file, it is exempt regardless of whether it depicts public conduct.
Q: What if I'm willing to pay for redactions?
A: The exemption is not about cost or about privacy of bystanders. It is a categorical exemption from the definition of "public record." Redaction does not solve a categorical exemption.
Q: How is this different from civil discovery?
A: In civil discovery, you can subpoena DSP, you can move to compel, and a judge weighs relevance, privilege, and burden. The court has tools the AG does not. The footage may well be obtainable that way.
Q: Does the investigatory-files exemption ever expire?
A: Per the opinion (citing News-Journal v. Billingsley), it attaches as soon as the agency learns of a potential issue and survives after the investigation closes. There is no automatic sunset. A change in circumstances (record formally released by court order, made part of a public hearing transcript, or similar) could change the analysis on a record-by-record basis.
Q: Why did the AG analyze all three exemptions instead of stopping at one?
A: It was not strictly necessary. The investigatory files exemption alone would have sufficed. The opinion addresses all three because the petitioner argued each was inapplicable, and the AG wanted the record clear on each point. It also gives DSP a roadmap for similar future denials.
Q: What is "pending litigation" for purposes of Section 10002(o)(9)?
A: The Delaware test is: (1) is litigation pending? (2) do the requested records pertain to that litigation? Both must be yes. Here the JP Court traffic citation case was pending and the body cam footage related to the events that produced the citations.
Citations
- 29 Del. C. § 10002(o)(3), investigatory files exemption
- 29 Del. C. § 10002(o)(4), criminal files closed to public scrutiny
- 29 Del. C. § 10002(o)(9), pending or potential litigation exemption
- 29 Del. C. § 10003(a), public access to records
- 29 Del. C. § 10005(c): burden on public body
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021), affidavit standard
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980), investigatory files exemption attaches early and survives investigation
- Grimaldi v. New Castle Cnty., 2016 WL 4411329 (Del. Super. Aug. 18, 2016), litigants are not advancing public's right to know
- Mell v. New Castle Cnty., 835 A.2d 141 (Del. Super. 2003), FOIA cannot circumvent court discovery rules
- Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758 (Del. Super. Mar. 31, 2003), FOIA not a supplement to discovery rules
- Del. Op. Att'y Gen. 21-IB02, 21-IB20, 24-IB11, 10-IB13, prior DE AG FOIA opinions
Source
- Landing page: https://attorneygeneral.delaware.gov/2025/02/28/25-ib14-2-28-25-foia-opinion-letter-to-matthew-e-obyrne-re-delaware-state-police-department-of-safety-and-homeland-security/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-No.-25-IB14.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. 25-IB14
February 28, 2025
VIA EMAIL
Matthew E. O'Byrne, Esq.
Casarino Christman Shalk Ransom & Doss
[email protected]
RE:
FOIA Petition Regarding the Delaware State Police, Department of Safety and
Homeland Security
Dear Mr. O'Byrne:
We write in response to your correspondence alleging that the Delaware State Police,
Department of Safety and Homeland Security ("DSP") violated Delaware's 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 of whether a violation of FOIA has
occurred or is about to occur. For the reasons set forth below, we determine that the DSP did not
violate FOIA by denying access to the requested records.
BACKGROUND
On January 9, 2025, you submitted a FOIA request for "any photos and videos including
body camera and dashboard camera footage of all responding officers" from a vehicle accident
that occurred on July 22, 2023. The request further noted you have been retained to represent a
party involved in this accident, and you are seeking the records for use in a lawsuit. The DSP
denied this request, citing three FOIA exemptions: 29 Del. C. § 10002(o)(3), 29 Del. C. §
10002(o)(4), and 29 Del. C. § 10002(o)(9). This Petition followed.
In the Petition, you argue that the cited exemptions do not apply, and these types of records,
body camera footage, dashboard footage, and photographs, are "routinely accessible to the
public."1 You contend that Section 10002(o)(3), which exempts criminal investigatory files, does
not apply, because this request is not for an internal police report or confidential records, but rather
"objective documentation of an incident that already resulted in citations," and disclosing the
requested video footage and photographs would not interfere with any law enforcement activities,
as no investigation is pending.2 You argue that Section 10002(o)(4) is similarly inapposite,
because this exemption concerns criminal files, the disclosure of which would constitute an
invasion of personal privacy, and the requested records do not contain private or confidential
criminal records; they are of public interactions between officers and civilians. Finally, you
contend that Section 10002(o)(9) is not controlling, as it is intended to protect attorney work
product prepared for litigation, and these photographs and video footage were created in the
ordinary course of law enforcement activity, not for the purpose of litigation.
On February 7, 2025, the DSP, through its legal counsel, replied to the Petition
("Response"). The Response included the affidavit of the Community Relations Officer, who
attests that the request "seeks photographs and video in the possession of DSP that pertain to an
automobile accident that occurred on July 22, 2023," which resulted in several violations under
Delaware Code, and these citations are the subject of a pending case in the Justice of the Peace
Court. The DSP argues that the records pertaining to traffic and criminal incidents, including video
footage taken by law enforcement, fall under the exemption for investigatory files. The DSP points
out that although the incident that is the subject of the request is not closed, the investigatory files
exemption still applies to closed investigations. In addition, the DSP maintains that as the
requested records pertain to an ongoing criminal traffic matter with the State, the DSP also properly
objected to the request based on the litigation exception. Finally, the DSP asserts that the providing
footage of a pending criminal traffic matter would run afoul of Section 10002(o)(4), which
prohibits the disclosure of criminal files.
DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records.3 The public body has the burden of proof to justify its denial of
access to records.4 In certain circumstances, a sworn affidavit may be required to meet that
burden.5
1
Petition.
2
Id.
3
29 Del. C. § 10003(a).
4
29 Del. C. § 10005(c).
5
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
2
In its response to this request, the DSP invoked 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." The sworn statements indicate that this law
enforcement investigation arose from an automobile accident. The DSP's denial of these
photographs and video footage under the investigatory files exemption is proper, as these records
involve a law enforcement encounter precipitating a police investigation.6 Whether the
investigation is closed is immaterial to this analysis.7
Section 10002(o)(4) is also applicable here to the extent you seek these records from the
criminal prosecution files. This exemption, in part, states as follows:
Criminal files and criminal records, the disclosure of which would
constitute an invasion of personal privacy. Any person may, upon
proof of identity, obtain a copy of the person's personal criminal
record. All other criminal records and files are closed to public
scrutiny.8
This exemption does not require a public body to release the records in a criminal prosecution file,
and the Petition's assertion that this disclosure does not constitute an invasion of personal privacy
is not germane to the analysis. "While any person may obtain a copy of his/her criminal record,
subject only to an agency's authority to withhold certain information contained in the criminal
record, 'criminal files' are closed; there is no exception in the statute."9 Hence, Section
10002(o)(4) permits withholding these records that are in the criminal file.
Finally, the Petition claims that these records are not subject to the pending litigation
exemption, as they were created for law enforcement purposes and the pending litigation
exemption is intended to exempt attorney work product. However, the scope of the pending
litigation exemption is not so narrow. Under FOIA, "records pertaining to pending or potential
litigation which are not records of any court" are excluded from the definition of "public record."10
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).").
6
7
The investigatory files exemption continues to apply after an investigation is closed.
News-Journal Co. v. Billingsley, 1980 WL 3043, at *2-3 (Del. Ch. Nov. 20, 1980) (determining
that the investigatory files exemption attaches as soon as a public body is made aware of a potential
issue and the exemption survives after the investigation is completed).
8
29 Del. C. § 10002(o)(4).
9
Del. Op. Att'y Gen. 10-IB13, 2010 WL 4154565, at *1 (Oct. 8, 2010) (citation omitted).
10
29 Del. C. § 10002(o)(9).
3
"[W]hen parties to litigation against a public body seek information relating to the litigation, they
are not doing so to advance 'the public's right to know,' but rather to advance their own personal
stake in the litigation."11 "Delaware courts will not allow litigants to use FOIA as a means to
obtain discovery which is not available under the court's rules of procedure."12 "And the
legislature has made it clear that the Act is not intended to supplant, nor even to augment, the
courts' rules of discovery."13
To determine if the pending litigation exemption applies, we must consider whether
litigation is pending and whether the records that the requesting party seeks pertain to that pending
litigation.14 In this case, the DSP satisfied both prongs. The affidavit of the Community Relations
Officer makes clear that litigation is pending, and the requested photographs and footage pertain
to the pending litigation. As such, we also find that these records are also exempt under Section
10002(o)(9).
CONCLUSION
For the foregoing reasons, we conclude that the DSP did not violate FOIA by denying
access to the requested records.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc:
Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General
11
Grimaldi v. New Castle Cnty., 2016 WL 4411329, at *9 (Del. Super. Aug. 18, 2016)
(citation omitted).
12
Mell v. New Castle Cnty., 835 A.2d 141, 147 (Del. Super. 2003) (citation omitted).
13
Office of the Pub. Defender v. Del. State Police, 2003 WL 1769758, at 3 (Del. Super.
Mar. 31, 2003).
Del. Op. Att'y Gen. 21-IB02, 2021 WL 559557, at 2 (Jan. 21, 2021) ("[W]e believe that
the application of this exemption should be limited to determining whether litigation is pending
and whether the records that the requesting party seeks pertain to that pending litigation."); see
also Del. Op. Att'y Gen. 21-IB20, 2021 WL 4351857, at *2-3 (Sept. 14, 2021).
14
4