Can I get the police station booking-area video and 911 audio for an arrest where the charges were later dismissed?

Plain-English summary

Gordon Putnik's criminal charges from a March 2025 incident had been dismissed. He filed a FOIA request to New Castle County for everything: body-cam and dash-cam from the responding officers, 911 audio recordings, CAD logs, dispatcher notes, call detail histories, radio traffic, transport video from the patrol car, and all station, intake, sally-port, booking, hallway, and holding-cell video for the date range plus cell assignment logs. The County denied the request as falling within the investigatory files exemption.

Putnik petitioned, arguing that with the case dismissed and no active prosecution, FOIA should be the right tool, and that the request was narrow enough to comply with FOIA.

The AG found no violation, on two independent grounds.

Ground 1: investigatory files exemption (§ 10002(o)(3)). This exemption applies to "investigatory files compiled for civil or criminal law-enforcement purposes." The exemption attaches as soon as the agency is aware of a potential issue and survives case closure (News-Journal Co. v. Billingsley, 1980). The records at issue (body-cam, dash-cam, 911, dispatch, CAD, transport video) are all part of investigatory files compiled for the underlying law enforcement incident. Two FOIA coordinators (one for Emergency Communications, one for Police) provided sworn affidavits attesting that the records were investigatory files. Categorical exemption applies.

Ground 2: building security exemption (§ 10002(o)(17)). The station/booking/sally-port/hallway/holding-cell video raises a different concern: these are surveillance recordings from the secure areas of the police facility. Section 10002(o)(17) exempts records that "could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual." The Police FOIA coordinator's affidavit specifically attested that the footage "is of the secure areas of the building where individuals under arrest or detention are housed and processed" and "shows security protocol used in those areas as well as the physical layout of the secure areas."

The AG drew on a New Jersey Supreme Court decision interpreting that state's analogous security exemption: information revealing "the capabilities and vulnerabilities of surveillance cameras that are part of a public facility's security system" is precisely what such exemptions protect. Releasing the booking-area video would "make it possible for any person to gather the information necessary to dismantle the protection provided by such security systems." The same logic applies under § 10002(o)(17)(a).

The opinion noted that the County had not specifically cited § 10002(o)(17) in its initial response (only § 10002(o)(3)) and that the County "is encouraged to fully assert the rationale for denying a request in its response to the requesting party." That is good practice but not a violation.

The AG also rejected Putnik's separate claim that the County had improperly denied the request as "overly broad" or had said a subpoena was required. Neither of those grounds appeared in the actual denials.

What this means for you

If you have had charges dismissed and want the police records to support a civil claim

FOIA is generally not the path. The investigatory files exemption at § 10002(o)(3) categorically covers police records and survives case closure. Better paths: file the civil case and use civil discovery; subpoena the records in another related proceeding; negotiate with the police department through counsel for voluntary release.

If you are a civil rights lawyer

This opinion confirms that body-cam, 911, dispatch, CAD logs, and station-area surveillance video for any law-enforcement-related event are categorically off-limits under FOIA. Your evidentiary path runs through civil discovery in your client's lawsuit. File first, subpoena second.

If you are seeking specifically the booking-area or station security video

You face an additional, independent obstacle beyond § 10002(o)(3): the building security exemption at § 10002(o)(17). Even if § 10002(o)(3) somehow did not apply (e.g., if the footage predates any law-enforcement incident), the security exemption would. Detailed views of police station layout, camera angles, and security protocols are protected.

If you are a Delaware county or municipal records coordinator

When responding to a request that combines investigatory files (body-cam, dash-cam, 911) with station-area video, cite both § 10002(o)(3) and § 10002(o)(17) in your initial response. The AG opinion specifically encouraged this. Provide sworn affidavits from the relevant FOIA coordinators identifying the records and the basis for each exemption claim.

If you are a journalist seeking police footage

Same advice as 26-IB05: FOIA is a difficult path. Voluntary releases by the police department, footage from civilian sources, and post-civil-discovery records are more reliable. Direct FOIA requests for body-cam or station-area footage are routinely denied.

Background and statutory framework

The investigatory files framework is the same as in 26-IB05 (the DSP body-cam opinion issued the same year). 29 Del. C. § 10002(o)(3) exempts investigatory files compiled for civil or criminal law-enforcement purposes; the exemption attaches as soon as the agency is aware of a potential issue and survives case closure (News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)). The categorical nature of the exemption means no harm-showing is required.

29 Del. C. § 10002(o)(17) protects records that "could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual." Subsection (a) covers buildings or structures whose security would be compromised by disclosure of surveillance techniques.

The AG referenced a New Jersey Supreme Court interpretation of New Jersey's analogous exemption (which exempts disclosure of "security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein" and "security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software"). The New Jersey court held that surveillance video showing the parking lot of a municipal building was exempt. The reasoning: revealing the capabilities and vulnerabilities of surveillance cameras helps anyone "dismantle the protection" the system provides. The same logic applies in Delaware.

The Police FOIA coordinator's affidavit was specific: the requested footage shows secure areas, security protocols, and physical layout. That specificity met the Judicial Watch standard for sworn affidavits.

Common questions

Why does case dismissal not enable these records?

Because the investigatory files exemption survives case closure. The exemption protects investigative materials, witness identities, methods, and similar content that have ongoing sensitivity beyond the particular case.

Can I get just the audio (911) and not the video?

The investigatory files exemption applies to all forms: audio, video, text, photos. Format does not change the categorical exemption.

What about CAD logs and dispatch notes?

Same exemption. The AG opinion 24-IB11 (cited in 26-IB05) held that CAD-related records "would initiate police investigation" and are categorically exempt.

Why is booking-area video covered by the security exemption?

Because it shows the layout of secure areas, the angles and quality of surveillance cameras, the timing of monitoring, and the protocols officers use during processing. Those are exactly the operational details that, if released, would help someone planning to evade or attack the facility's security.

Does the security exemption require a particularized harm showing?

No. Like § 10002(o)(3), the security exemption is categorical. The public body must establish (with a sworn affidavit) that the records fall within the exemption's scope, but does not have to prove specific harm from disclosure.

Can I see the footage if I have a court order?

A court order in a civil or criminal proceeding can compel production. Discovery in a § 1983 civil rights case, for example, can reach body-cam, dispatch records, and even sensitive booking-area video subject to protective-order limits. FOIA is just one access channel; courts can require production through other channels.

Did the County's failure to cite § 10002(o)(17) initially cause a problem?

Not a violation, but the AG flagged it as poor practice. Public bodies should fully assert the rationale for denying a request in the initial response, not later in a petition response.

Is this a criticism of New Castle County's denial?

The AG affirmed the denial. The note about citing all relevant exemptions is a procedural recommendation for future responses, not a holding that this denial was inadequate.

Citations

• Statutes: 29 Del. C. § 10002(o)(3) (investigatory files); § 10002(o)(17) and § 10002(o)(17)(a) (building security); § 10003(a); § 10005; § 10005(c).
• Cases: News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980); Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
• Reference to New Jersey Supreme Court ruling on analogous security exemption (per the opinion's footnotes 14-16, citing N.J. precedent).

Source

• Landing page: https://attorneygeneral.delaware.gov/2025/12/19/25-ib65-12-19-2025-foia-opinion-letter-to-gordon-putnik-re-new-castle-county/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2025/12/Attorney-General-Opinion-No.-25-IB65.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 25-IB65

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 25-IB65

December 19, 2025

VIA EMAIL

Gordon Putnik
[email protected]

RE: FOIA Petition Regarding New Castle County

Dear Mr. Putnik:

We write in response to your correspondence, alleging that New Castle County 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 County did not violate FOIA by denying access to the requested records.

BACKGROUND

On November 3, 2025, you submitted a FOIA request for the following items related to an arrest and charges that have since been dismissed: (1) all police body camera and dash camera footage from responding officers during a certain timeframe on March 12-13, 2025, including pre-arrival, on scene, arrest, and post-arrest footage; (2) 911 audio recordings, CAD logs, dispatcher notes, call detail histories, and radio traffic related to this incident during requested timeframe; (3) all the transport video footage from police body camera and dash camera of responding officers from the patrol car until custody was transferred; and (4) all station, intake, sally-port, booking area, hallway, and holding cell video footage for March 12-13, 2025 and cell assignment logs and time stamps. The Police and Emergency Communications Divisions of the County's Department of Public Safety both responded to the requests, stating that while FOIA requires disclosure of a broad range of documents, it is not without limits, and in this case, your request must be denied because the requested records fall directly within the scope of the exemption for investigatory files compiled for purposes of civil or criminal law enforcement. This Petition followed.

In the Petition, you argue that the charges were dismissed, and no active prosecution exists with respect to these requested records. You allege that the County improperly denied your requests as too broad and suggested you need a subpoena to obtain the records. As a case is not pending, you argue that FOIA, not a subpoena, is the appropriate mechanism for obtaining these records. You also allege that the requests are narrowly tailored in compliance with FOIA.

On December 3, 2025, the County, through its legal counsel, responded to your Petition. The County points out that neither response cited to the request being overly broad nor requiring a subpoena. However, the County asserts the requested records were properly withheld under 29 Del. C. § 10002(o)(3) and 29 Del. C. § 10002(o)(17). The County argues that the investigatory files exemption applies here, as the records were all created because of this criminal law enforcement incident. Although the exemption in Section 10002(o)(17) was not specifically cited in its initial response, the County also argues that "'all station, intake, sally-port, booking area, hallway and holding cell video footage' would be exempt under [29 Del. C. § 10002(o)(17)] as their disclosure would jeopardize the security and safety of the New Castle County Police station."

In addition, the County included two affidavits with its Response. The FOIA coordinator for the Emergency Communications Division attests that the 911 audio recordings, CAD logs, dispatcher notes, and call detail histories were part of the investigatory files compiled for civil or criminal law enforcement purposes. The FOIA coordinator for the Division of Police states under oath that the remaining records were part of the investigatory files compiled for civil or criminal law enforcement purposes. The Police FOIA coordinator also attests that "[t]he video footage requested is of the secure areas of the building where individuals under arrest or detention are housed and processed," and "[t]he footage shows security protocol used in those areas as well as the physical layout of the secure areas."

DISCUSSION

Delaware's FOIA law "was enacted to ensure governmental accountability by providing Delaware's citizens access to open meetings and meeting records of governmental or public bodies, as well as access to the public records of those entities." FOIA requires that citizens be provided reasonable access to and reasonable facilities for the copying of public records. The public body has the burden of proof to justify its denial of access to records. In certain circumstances, a sworn affidavit may be required to meet that burden.

The Petition claims that the requests were improperly denied as overly broad or requiring a subpoena. However, neither response to the November 3, 2025 request cites these reasons as rationale for the denial. Rather, the County argues that the records are exempt pursuant to Section 10002(o)(3) pertaining to investigatory files compiled for purposes of civil or criminal law enforcement. Section 10002(o)(3) 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." "[F]or purposes of FOIA, the investigatory exemption attaches as soon as an agency is first made aware of a potential issue." This exemption is not limited to pending investigations and continues to apply after an investigation is closed.

This request seeks the law enforcement records arising from the County police response to a 911 call reporting an incident at a particular property; such calls, on their face, would initiate police investigation for civil or criminal law enforcement purposes. As further support, the County provides affidavits from each division's FOIA coordinator attesting the requested records within their respective custody are part of investigatory files compiled for civil or criminal law enforcement purposes. Thus, the requested records are exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

Additionally, we find that although the County did not cite the security exemption in its initial response to the request, the request for "station, intake, sally-port, booking area, hallway and holding cell video footage" is also subject to this exemption under Section 10002(o)(17). The County is encouraged to fully assert the rationale for denying a request in its response to the requesting party.

The County maintains that its video footage of the station is exempt under 29 Del. C. § 10002(o)(17)(a). Section 10002(o)(17) specifically states it protects records "which could jeopardize the security of any structure owned by the State or any of its political subdivisions, or could facilitate the planning of a terrorist attack, or could endanger the life or physical safety of an individual. . . , " including records of any building or structure operated by the State or a political subdivision, the disclosure of which would reveal the building's surveillance techniques.

The Supreme Court of New Jersey considered a FOIA request for surveillance video under its security exemption, which is similar to Delaware's exemption and exempts disclosure of "security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein" and "security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software." The Court determined that security camera footage showing the parking lot of a municipal building was exempt from disclosure by this language, pointing out that "[i]nformation that reveals the capabilities and vulnerabilities of surveillance cameras that are part of a public facility's security system is precisely the type of information that the exceptions meant to keep confidential in furtherance of public safety." The court explained that it "takes no stretch of the imagination to realize that that [release of security camera video] would make it possible for any person to gather the information necessary to dismantle the protection provided by such security systems."

Similar concerns are presented here. The Police FOIA coordinator attests that the "video footage requested is of the secure areas of the building where individuals under arrest or detention are housed and processed," and the "footage shows security protocol used in those areas as well as the physical layout of the secure areas." Permitting access to this surveillance footage would allow requesting parties to stitch together a comprehensive view of the security cameras' angles, timing, coverage, and quality, in addition to the movements of the people therein, jeopardizing the security of the building and its occupants. Section 10002(o)(17) is intended to protect such information from disclosure, and we determine that the County appropriately denied your request for the video footage on this additional basis.

CONCLUSION

Based on the foregoing, we conclude that the County 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: Colleen K. Norris, Assistant County Attorney