If Delaware State Police stopped me on a sidewalk and I want the body camera footage of my own stop, can I get it through FOIA?

Plain-English summary

Tom Somers Jr. was the subject of a pedestrian stop by a Delaware State Police officer on March 19, 2025. The next day, he filed a FOIA request for the body cam footage from the officer, the dash cam from the patrol vehicle, audio and transcripts of related radio or dispatch communications, and all officer reports about the incident, including notes, citations, and stated reasons for the stop.

DSP denied the request under both the investigatory files exemption (§ 10002(o)(3)) and the pending or potential litigation exemption (§ 10002(o)(9)).

Somers petitioned. His arguments: he is the subject of the records, no pending investigation or criminal case had been disclosed to him, and the public interest in transparency and accountability should outweigh the investigatory exemption.

The Chief Deputy AG ruled for DSP. The investigatory files exemption was sufficient on its own, so the AG did not reach the litigation exemption. The DSP's Community Relations Officer, who is also the FOIA coordinator, attested under oath that the records relate to a police-initiated pedestrian stop and the resulting investigation. Under News-Journal v. Billingsley, the exemption attaches as soon as the agency learns of a potential issue and survives after the investigation closes. Two specific points the AG made (in a footnote that doubles the substantive answer):

1. It does not matter that the requester is the subject of the records. FOIA does not address whether a person can get records about themselves; FOIA is about what records the public can get. Whatever rights you have to "your own" records come from somewhere other than FOIA.
2. It does not matter whether the investigation is still pending. The exemption applies to closed files, too.

What this means for you

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

The opinion holds that body cam, dash cam, dispatch audio, and officer reports arising from a police-initiated pedestrian stop are exempt as investigatory files under § 10002(o)(3). It states that it does not matter that the requester is the subject of the records, because FOIA does not address whether a person can obtain records about themselves, and it does not matter whether the investigation is still pending, because (citing News-Journal v. Billingsley) the exemption attaches as soon as the agency learns of a potential issue and survives after the investigation closes.

If you're a Delaware civil rights attorney building a case from a stop

The opinion holds that these records are exempt from FOIA disclosure under the investigatory files exemption. It does not address civil discovery; it resolves only whether FOIA compelled disclosure, and concludes it did not.

If you're a journalist reporting on a specific police encounter

The opinion holds that the investigatory files exemption is categorical and that the requester's public-interest argument did not overcome it. The AG decided the matter on § 10002(o)(3) alone and did not reach the pending-or-potential-litigation exemption DSP had also cited.

If you advise a Delaware police agency

The opinion holds that the DSP carried its burden through a sworn affidavit from its Community Relations Officer (also its FOIA coordinator) attesting that the records were part of the law-enforcement investigatory file. The AG treated that as sufficient to support the § 10002(o)(3) denial, without itemizing individual records or applying a public-interest balancing test.

If you advocate for body-cam transparency in Delaware

The opinion holds that under current Delaware FOIA the investigatory files exemption applies to body cam footage of a stop regardless of whether the requester is the subject and regardless of whether the investigation is closed. It does not recognize any subject-access or public-interest exception to § 10002(o)(3); the opinion applies the statute as written.

Common questions

Q: I thought I had a right to records about myself.
A: That is a common assumption but it is not true under Delaware FOIA. Some records about you (your own criminal record, your educational record under FERPA, your medical record) are accessible under specific statutes, but not under FOIA. The footnote in this opinion states this directly: "FOIA does not prescribe whether a person is entitled to records that pertain to that person."

Q: What if no charges were filed?
A: Doesn't matter. The investigatory files exemption attaches as soon as the agency is "first made aware of a potential issue." Once the officer initiated the stop, the exemption attached. Whether the encounter ever leads to a charge does not affect the analysis.

Q: Can DSP keep the footage forever?
A: There is a separate question of records-retention policy, which is governed by other rules and policies, not FOIA. DSP can keep or destroy according to its retention schedule. Either way, while it has the records, they are exempt from FOIA disclosure.

Q: What's the difference between this case and the 25-IB14 case (the lawyer-requester body cam case)?
A: In 25-IB14, the requester was the lawyer of a party in pending civil litigation arising from a 2023 accident. The pending-litigation exemption was a key factor there. Here, the requester was the subject himself and the AG decided the case on the investigatory files exemption alone. The bottom-line answer is the same.

Q: Did the AG order the records released?
A: No. The AG concluded DSP did not violate FOIA by denying access, so there was nothing to remediate. The opinion resolves only that FOIA did not compel disclosure of the records; it does not address whether DSP could release them through some other process.

Q: Is there a public-interest balancing test under § 10002(o)(3)?
A: No. Some FOIA exemptions in other states use a public-interest test. Delaware's investigatory files exemption is categorical. Public-interest framing in the petition does not enable the records.

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), exemption attaches early and survives investigation closure
• Del. Op. Att'y Gen. 25-IB14 (Feb. 28, 2025), same analysis applied to body cam from civil litigation context
• Del. Op. Att'y Gen. 24-IB11 (Feb. 23, 2024), call-for-service records exempt
• Del. Op. Att'y Gen. 18-IB13 (Mar. 6, 2018), FOIA does not address requester's relationship to records

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/05/20/25-ib29-5-20-25-foia-opinion-letter-to-tom-somers-jr-re-delaware-state-police-department-of-safety-and-homeland-security/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/05/Attorney-General-Opinion-No.-25-IB29.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-IB29
May 21, 2025

VIA EMAIL
Tom Somers, Jr.
[email protected]

RE:

FOIA Petition Regarding the Delaware State Police, Department of Safety and
Homeland Security

Dear Mr. Somers:
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 March 20, 2025, you submitted a FOIA request for the following records related to an
encounter you had with a police officer on March 19, 2025:

1. Body-worn camera footage from [a police officer] during the
   incident.
2. Dash camera footage from [this officer's] patrol vehicle
   covering the time of the stop.

3. Audio recordings and transcripts of any radio or dispatch
   communications related to this stop.

4. All officer reports or documentation regarding this incident,
   including notes, citations, and reasons for the stop. 1
   The DSP denied this request, citing the exemptions for criminal law enforcement
   investigatory records under 29 Del. C. § 10002(o)(3) and for records related to pending or potential
   litigation under 29 Del. C. § 10002(o)(9). 2 This Petition followed. In the Petition, you question
   whether these exemptions were properly asserted. You point out that you are the subject of these
   records, and you have not been informed of any pending investigation or criminal case. You argue
   that the "public interest in transparency and accountability outweighs any investigatory exemption
   in this matter." 3
   On April 30, 2025, the DSP, through its legal counsel, replied to the Petition ("Response").
   The Response included the affidavit of the DSP's Community Relations Officer, who also serves
   as the FOIA coordinator for the DSP. The Community Relations Officer states under oath that the
   request seeks records related to your pedestrian stop that are considered part of the law
   enforcement investigatory file and are therefore subject to Section 10002(o)(3).

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for
the copying of public records. 4 The public body has the burden of proof to justify its denial of
access to records. 5 In certain circumstances, a sworn affidavit may be required to meet that
burden. 6
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 records you seek are related to your specific
encounter in which a police officer initiated a pedestrian stop and investigation. 7 The Community
Relations Officer states under oath that the request seeks records that are part of the law
1

Petition.

2

As we find that the investigatory files exemption is determinative, we do not further address
the pending or potential litigation exemption.
3

Petition.

4

29 Del. C. § 10003(a).

5

29 Del. C. § 10005(c).

6

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

7

Petition; Response, Aff. of Community Relations Officer dated Apr. 30, 2025.
2

enforcement investigatory file and are subject to Section 10002(o)(3). We determine that the
DSP's denial of access to these records under the investigatory files exemption is proper, as these
records involve a law enforcement encounter that precipitated a police investigation. 8 Even if the
investigation is no longer pending and you are the subject of these records, this exemption applies;
neither factor impacts this analysis under FOIA. 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

8

Del. Op. Att'y Gen. 25-IB14, 2025 WL 818783, at 2 (Feb. 28, 2025) ("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."); 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).").
9

The investigatory files exemption continues to apply after an investigation is closed. NewsJournal 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). Additionally, FOIA does not
prescribe whether a person is entitled to records that pertain to that person; FOIA merely mandates
what records must be made available to the public. See Del. Op. Att'y Gen. 18-IB13, 2018 WL
1405829, at 1 (Mar. 6, 2018) (finding that the propriety of a request seeking records about the
requesting party is outside the scope of the FOIA statute, as "any such entitlement would have no
basis in Delaware's FOIA and is therefore beyond the scope of our role in this context.").
3