DE 26-IB05 2026-02-03

Can I get Delaware State Police body camera footage of my own arrest after the case is closed?

Short answer: Generally no. AG opinion 26-IB05 found that the Delaware State Police did NOT violate FOIA by denying James Eaves's request for body-worn camera footage related to his closed criminal cases. The investigatory files exemption at 29 Del. C. § 10002(o)(3) covers body-cam footage of law enforcement encounters, attaches as soon as the agency is aware of a potential issue, and continues to apply even after the investigation is closed. The exemption does not require the public body to show identifiable harm; categorical application is enough.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

Plain-English summary

James Eaves filed a FOIA request to the Delaware State Police for body-worn camera footage related to two of his court cases. The cases were over. He wanted the footage to evaluate whether to bring civil claims about an officer's use of force, and he argued that none of the FOIA-recognized concerns (no juveniles in the footage, no pending investigation) applied. DSP denied the request under three exemptions: investigatory files (§ 10002(o)(3)), criminal records (§ 10002(o)(4)), and records exempt by statute (§ 10002(o)(6) referring to 11 Del. C. chapters 85 and 86 governing criminal history records).

The AG found no violation. The opinion centers on the investigatory files exemption at § 10002(o)(3), which exempts "investigatory files compiled for civil or criminal law-enforcement purposes." Two doctrinal points carry the analysis:

Body-worn camera footage of a law enforcement encounter is, on its face, part of an investigatory file compiled for civil or criminal law enforcement purposes.
The exemption attaches "as soon as an agency is first made aware of a potential issue" and "continues to apply after an investigation is closed." That is from News-Journal Co. v. Billingsley (Del. Ch. 1980) and a long line of AG opinions: 17-IB05, 17-IB47, 05-IB16, 98-IB13, 25-IB14, and 24-IB11. The fact that the criminal cases were dismissed or closed is not a basis for release.

The exemption is categorical. Unlike some FOIA exemptions that require a showing of identifiable harm or particularized need, the investigatory files exemption at § 10002(o)(3) is fully self-executing once the records fall within its scope. The DSP did not have to show that release would harm an investigation, prejudice a prosecution, or compromise a witness; the records are categorically out.

What this means for you

If you want body-worn camera footage of your own police encounter for a civil claim

A FOIA request to the Delaware State Police will almost always fail under § 10002(o)(3), even after the underlying criminal case is closed. The exemption is categorical and survives case closure. Practical alternative paths:

Civil discovery once you file your civil claim. Body-cam footage produced in litigation is governed by civil discovery rules, not FOIA, and a civil court can compel production.
Subpoena. If you have a related state or federal proceeding, a subpoena duces tecum can reach footage that FOIA cannot.
Direct negotiation with the DSP through counsel. The DSP can voluntarily provide footage even when FOIA does not require it.

If you are a civil rights or use-of-force lawyer

Build your evidentiary path through civil discovery, not FOIA. The Delaware FOIA framework is not a usable workaround for police records access in active or contemplated civil litigation. File the civil case first, then obtain the footage through discovery.

If you are a journalist seeking police footage

The investigatory-files exemption is robust and applies even to closed cases. Public-interest exceptions are narrow. The most reliable path is records that the DSP has voluntarily released (e.g., to media after high-profile incidents), or footage provided by other parties (defense counsel, civilians on the scene). Direct FOIA requests for officer body-cam are likely to be denied.

If you are a Delaware police officer

Your body-cam footage from law enforcement encounters falls within § 10002(o)(3) and is generally protected from FOIA disclosure. The protection survives case closure. This does not protect against discovery in civil suits where the footage is relevant.

If you are a Delaware State Police FOIA coordinator

When you receive a request for body-cam or other footage of a law enforcement encounter, deny under § 10002(o)(3). Cite News-Journal Co. v. Billingsley and the longstanding AG line of authority. The exemption is categorical, so a particularized harm showing is not required. If the request is for body-cam footage that is genuinely outside any investigatory context (which is rare), apply the personnel-records or other exemption analysis.

Background and statutory framework

The investigatory files exemption at 29 Del. C. § 10002(o)(3) covers "investigatory 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 exemption is well-developed:

News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) held that the exemption attaches as soon as a public body is made aware of a potential issue and survives after the investigation is completed.
Multiple AG opinions confirm the rule: 17-IB05, 17-IB47, 05-IB16, 98-IB13, 25-IB14, and 24-IB11.
The 2025 AG opinion 25-IB14 specifically held that "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."
The 2024 AG opinion 24-IB11 held that records of "the date and type of calls for service to the DSP from a particular residence, which on its face, would initiate police investigation" are exempt under § 10002(o)(3).

DSP also relied on § 10002(o)(4) (criminal records) and § 10002(o)(6) (records exempt by statute, here 11 Del. C. chapters 85 and 86 covering Delaware's criminal history record framework). The AG did not need to reach those alternative grounds because § 10002(o)(3) was sufficient.

The general FOIA framework is the same as in 26-IB06: § 10003(a) (reasonable access), § 10005 (petition process), § 10005(c) (public body's burden of proof), Judicial Watch (sworn affidavit standard).

Common questions

Why does the exemption survive case closure?

Because the underlying purpose of the exemption is to protect law enforcement work product, witness statements, and investigative methods from public disclosure that could compromise future investigations or expose individuals (witnesses, informants, officers, accused) to retaliation. That purpose persists after a particular case ends.

What about Delaware's Public Integrity Commission or other oversight?

Different framework. Public oversight of police activities can occur through the Department of Justice's own use-of-force review processes, civil litigation discovery, and legislative oversight. None of those are governed by FOIA.

Can a civilian who is the subject of footage obtain it?

Not directly under FOIA. The investigatory-files exemption is categorical and does not turn on the requester's identity. The civilian's path is civil discovery in any related lawsuit.

What if the case was dismissed and there is no investigation?

The exemption attaches when the agency is first aware of a potential issue and survives case closure. Dismissal does not reset the analysis.

Are there any body-cam records that DSP must release?

Conceivably, footage that was never part of any investigatory file (e.g., training videos shared on official channels) could fall outside § 10002(o)(3). But footage from a law enforcement encounter that resulted in any sort of investigation is generally categorically exempt.

What about the criminal records exemption at § 10002(o)(4)?

The AG did not need to reach it. § 10002(o)(4) covers "criminal records" by reference to other Delaware Code provisions. Where § 10002(o)(3) already supports the denial, the analysis stops.

What about a federal FOIA request?

The federal Freedom of Information Act applies only to federal agencies. State agencies like DSP are not covered. A federal FOIA request to DSP would not produce records.

What about civil discovery in a civil rights case?

Civil discovery is governed by the Federal or state civil rules, not FOIA. A § 1983 plaintiff can subpoena body-cam footage and the federal magistrate can compel production. The investigatory-files exemption does not bar civil discovery.

Citations

Statutes: 29 Del. C. § 10002(o)(3) (investigatory files); § 10002(o)(4) (criminal records); § 10002(o)(6) (records exempt by statute); § 10003(a); § 10005; § 10005(c); 11 Del. C. ch. 85, ch. 86 (Delaware criminal history records).
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).
Prior AG opinions: 17-IB05; 17-IB47; 05-IB16; 98-IB13; 25-IB14; 24-IB11.

Source

Original opinion text

DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
ATTORNEY GENERAL
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 26-IB05
February 3, 2026

VIA EMAIL
James Eaves
[email protected]

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

Dear Mr. Eaves:
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 video footage.

BACKGROUND
On December 6, 2025, you submitted a FOIA request to the DSP for body-worn camera footage related to two court cases identified by case number. The DSP denied this request, citing the exemptions for investigatory file records for criminal law enforcement purposes under 29 Del. C. § 10002(o)(3); criminal records under 29 Del. C. § 10002(o)(4); and records exempt from disclosure by statute under 29 Del. C. § 10002(o)(6), specifically Title 11, Chapters 85 and 86 of the Delaware Code. This Petition followed.

In the Petition, you contend that the DSP's denial of this request is improper, because the DSP did not make a particularized showing that the disclosure is prohibited by law or would cause identifiable harm. You state that the requested recording pertains to you and the officer involved, and no juveniles appear in the footage. You state that the DSP acknowledged the investigation is complete. The purpose of your request is to obtain an accurate visual record of the encounter to evaluate potential civil claims arising from the officer's use of force. You contend that denying access to records on the grounds they are adverse, embarrassing, or would result in potential liability is not permissible under FOIA. You argue that the DSP failed to establish that the footage could not be released in full, or with narrowly tailored redactions, if necessary.

On January 15, 2026, the DSP, through its legal counsel, replied to the Petition ("Response"). The DSP contends that it is well established that records pertaining to law enforcement incidents, including body-worn camera footage, fall within the investigatory files exemption. The DSP argues that because this request involves footage related to criminal incidents, it also triggers the criminal and confidential record exceptions pursuant to 29 Del. C. § 10002(o)(4) and § 10002(o)(6), including 11 Del. C. Chapters 85 and 86.

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.

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." The application of this exemption does not require a public body to show that disclosure is prohibited or would result in identifiable harm. "[T]he 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. Here, this request seeks the body-worn camera footage related to a law enforcement encounter; such footage, on its face, pertains to an investigation for civil or criminal law enforcement purposes. Thus, the requested footage is considered part of the investigatory files and is fully exempt from disclosure pursuant to 29 Del. C. § 10002(o)(3).

CONCLUSION
For the foregoing reasons, we conclude that the DSP did not violate FOIA by denying access to the requested video footage.

Very truly yours,

Daniel Logan
Chief Deputy Attorney General

cc: Joseph C. Handlon, Deputy Attorney General; Dorey L. Cole, Deputy Attorney General