If Delaware police were called about me but no crime was charged, can I FOIA the body camera footage of that encounter?

Plain-English summary

Newark police were called about "suspicious activity" and that call led to officers interacting with Samuel Smith. Smith later filed a FOIA request asking the City for body camera footage of that interaction and the 911 call audio. The City denied, citing the investigatory files exemption (29 Del. C. § 10002(o)(3)). Smith narrowed his request to just the body camera footage. Same denial.

Smith petitioned. His argument was straightforward: the records concerned only him and the officers (not third parties), and there had been no crime and no investigation, so the investigatory files exemption could not apply.

The Deputy AG ruled for the City. The Newark Police Records Manager submitted a sworn affidavit confirming the records were generated from a call about suspicious activity, which then prompted the officer encounter. That is enough. Under Delaware case law (News-Journal v. Billingsley) and prior AG opinions, the investigatory files exemption attaches "as soon as an agency is first made aware of a potential issue." It does not require an arrest, a charge, an open investigation, or even a determination that a crime occurred. The encounter itself triggers the exemption, and the records of that encounter are exempt.

What this means for you

If you were the subject of a Delaware police encounter and want the footage

The bad news: FOIA almost certainly will not get you the body cam recording, even if no crime was charged and even if you were the only civilian involved. The investigatory files exemption is categorical and front-loaded. Other paths that may work better:

1. Civil discovery in a related case. If you have a civil matter related to the encounter (false arrest claim, lawsuit against an officer, divorce or custody dispute that turns on the incident), your lawyer can subpoena the footage in that case.
2. Criminal discovery. If you were charged with anything, your defense attorney has discovery rights to the footage.
3. Internal affairs / professional standards complaint. Filing a complaint may put the footage in front of an internal reviewer; you may not get a copy, but it is a separate accountability route.
4. The agency's discretionary release process. Some Delaware police agencies release body cam footage in matters of public interest at their own discretion. There is no FOIA right to compel that.

If you're a Delaware journalist covering a specific police encounter

Same answer: FOIA will not work for the underlying footage. The reporting workaround is to interview the participants, file an OPM (Open Public Meetings) request for any agency policy or oversight documents, and seek the footage through court proceedings if one of the participants chooses to make the case public.

If you advise a Delaware municipal police agency

This opinion lets you maintain a categorical FOIA denial for body cam footage from any incident sourced from a call for service or active police interaction. Document your denial with a one-paragraph affidavit from the records custodian: when the records were generated, by whom, and that they relate to a call for service or an officer-initiated encounter. That is the model the City of Newark used here, and it worked.

If you want to change the law

This is a statutory issue, not an interpretive one. The investigatory files exemption is broad by design. The path is the General Assembly. Some other states have created body-cam-specific FOIA carve-outs (with privacy redactions and limited time windows). Delaware has not. If body cam transparency is your policy goal, advocacy directed at amending Section 10002(o)(3) or adding a body-cam-specific provision is the lever.

Common questions

Q: I thought the investigatory files exemption only applied to ongoing investigations.
A: That is a common misreading. Per News-Journal v. Billingsley, the exemption attaches when the agency is "first made aware of a potential issue" and survives after the matter is closed. There is no time limit and no requirement that an investigation actually be open.

Q: Doesn't my own privacy interest weigh in favor of getting the footage of me?
A: The investigatory files exemption is structural; it does not depend on a privacy balancing test. Section 10002(o)(4) (criminal files) does include privacy language, but the underlying logic is similar: the exemption is about the file, not the person in the file.

Q: What if I'm willing to redact other people out of the footage?
A: Redaction is the answer to a privacy problem, not a structural-exemption problem. The footage is exempt as a category of record. Offering to redact does not remove the exemption.

Q: Could the City have given me the footage if it wanted to?
A: Yes. FOIA exemptions are permissive, not mandatory. The City could have voluntarily released. But it is not required to and there is no FOIA mechanism to force discretionary release.

Q: What about the 911 audio specifically?
A: Same exemption applies. 911 calls that lead to an officer encounter are part of the investigatory file. Some non-encounter 911 audio (e.g., medical emergency, no police response) might be analyzed differently in another case, but if a call results in police investigation, the audio falls within the exemption.

Citations

• 29 Del. C. § 10002(o)(3), investigatory files 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
• Del. Op. Att'y Gen. 17-IB05 (Mar. 10, 2017); 24-IB11 (Feb. 23, 2024), prior DE AG opinions applying the same rule

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/03/06/25-ib17-3-06-25-foia-opinion-letter-to-samuel-smith-re-city-of-newark/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/03/Attorney-General-Opinion-No.-25-IB17.pdf

Original opinion text

DEPARTMENT OF JUSTICE

KATHLEEN JENNINGS

820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

ATTORNEY GENERAL

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-IB17
March 6, 2025

VIA EMAIL
Samuel Smith
[email protected]

RE:

FOIA Petition Regarding the City of Newark

Dear Mr. Smith:
We write in response to your correspondence, alleging that the City of Newark 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 of whether a
violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine
that the City did not violate FOIA by denying access to the requested records.

BACKGROUND
On January 8, 2025, you submitted a FOIA request to the City's Police Department for
body camera footage of your interaction with police officers and the 911 call audio related to this
incident. The City denied your request the following day, citing the investigatory files exemption
in 29 Del. C. § 10002(o)(3). On January 28, 2025, you submitted a revised request seeking only
the body camera footage. This request was also denied under the same rationale. This Petition
followed.
The Petition alleges that the records requested pertain only to you and the officers, not to
any third party, and the investigatory files exemption does not apply because you believe "there
originally wasn't a crime committed nor was there an investigation."1
1

Petition.
1

The City, through its legal counsel, replied to the Petition and enclosed the affidavit of the
Public Safety Answering Point and Newark Police Records Manager ("Response"), who attests
that the Response is true and correct to the best of his knowledge. The City states that the police
officers responded to a call regarding suspicious activity, and this led to the interaction with the
officers. As the requested body camera footage and audio for the call constitute investigatory files
on their face, the City asserts that these records are exempt under the Section 10002(o)(3).

DISCUSSION
The public body has the burden of proof to justify its denial of access to records.2 In certain
circumstances, a sworn affidavit may be required to meet that burden.3 FOIA requires that citizens
be provided reasonable access to and reasonable facilities for the copying of public
records.4 However, under Section 10002(o)(3), FOIA exempts from disclosure "[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."5
The City's Response was submitted under oath and demonstrates that the requested records
are part of the law enforcement investigation arising from the call and interactions with the City's
police officers. "Delaware courts have made clear that, for purposes of FOIA, the investigatory
exemption attaches as soon as an agency is first made aware of a potential issue."6 As such, we
find no violation occurred in denying access to the requested records under Section 10002(o)(3).7

2

29 Del. C. § 10005(c).

3

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

4

29 Del. C. § 10003(a).

5

29 Del. C. § 10002(o)(3).

Del. Op. Att'y Gen. 17-IB05, 2017 WL 1317847, at 3 (Mar. 10, 2017) (citing News-Journal Co. v. Billingsley, 1980 WL 3043, at 3 (Del. Ch. Nov. 20, 1980)).
6

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
7

CONCLUSION
For the reasons set forth above, we conclude that the City did not violate FOIA by denying
access to the requested records.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Paul E. Bilodeau, City Solicitor

3