Can a Delaware citizen get body-camera footage, dash-cam video, and police reports from a traffic incident the citizen was personally involved in once the investigation is closed?
Plain-English summary
Brenden Moore was involved in a roadway incident with another vehicle that drew a Delaware State Police response. He filed a FOIA request asking for records of that incident, including body and dash camera footage, police reports, dispatch records, officer information, vehicle registration for the other driver, and any documents related to his visit to DSP Troop 9. He also asked for any traffic-stop records involving him in the Middletown area. DSP denied the request twice. The first denial cited a pending investigation; once the investigation was closed, Moore re-submitted the request and DSP denied again, citing the investigatory-files exemption (29 Del. C. § 10002(o)(3)) and the pending-litigation exemption (10002(o)(9)).
The AG agreed with DSP. The investigatory-files exemption "attaches as soon as an agency is first made aware of a potential issue" and "continues to apply after an investigation is closed." Records pertaining to a traffic incident or law-enforcement encounter are within the exemption on their face. The DSP correctly denied the request.
The opinion does not change the basic outcome for ordinary drivers: Delaware FOIA generally cannot be used to extract police body cameras, reports, or dispatch records, even when the requester is the person involved in the incident, even after the investigation is closed.
What this means for you
If you were involved in a Delaware traffic incident and want the records
The opinion holds that records of a law-enforcement encounter (body-cam and dash-cam footage, incident reports, dispatch records) fall within the investigatory-files exemption in § 10002(o)(3) on their face, and that the exemption applies to the records regardless of who is asking, including the person involved in the incident. It also holds that the exemption is not limited to pending investigations and continues to apply after an investigation closes. On those grounds the AG found DSP did not violate FOIA by denying the request.
If you are a personal injury or civil-litigation attorney in Delaware
The opinion holds that DSP's denial of the incident records under § 10002(o)(3) was proper, so a FOIA request is not a path to those records. It does not address civil discovery, subpoenas, or other litigation mechanisms; it resolves only the FOIA question.
If you are a DSP records officer or police FOIA coordinator
The opinion confirms that where a request, on its face, seeks records of a law-enforcement encounter, the investigatory-files exemption applies and no separate sworn affidavit is required to support it. It holds that the exemption survives the close of the investigation. DSP's denial citing § 10002(o)(3), without producing the records, was upheld.
If you are a journalist or accountability advocate
The opinion holds that body-cam footage and incident reports tied to a traffic encounter are within the investigatory-files exemption and properly withheld under FOIA. It does not address whether other disclosure rules might reach particular categories of police records; it decides only that these records fall within § 10002(o)(3).
Common questions
Q: Why does the exemption survive after the investigation closes?
A: Delaware courts and the AG have consistently read the exemption that way since the 1980 News-Journal Co. v. Billingsley decision. The reasoning: the policy interests behind the exemption (protecting investigative methods, witness identities, ongoing law-enforcement effectiveness) do not vanish when a particular case is closed, and the legislature did not write a sunset into the exemption.
Q: I was the person involved in the incident. Doesn't that change things?
A: No. The exemption applies to the records, not to who is asking. Even the person involved in the incident has to use other means (civil discovery, criminal defense process, sometimes a court order) to get records.
Q: What if I just want a basic incident report, not body-cam footage?
A: The opinion does not distinguish between categories of incident records. It treats the records sought, which included police reports along with footage and dispatch records, as records pertaining to a law-enforcement investigation, all within § 10002(o)(3). It does not address any separate procedure for obtaining a routine incident report outside FOIA.
Q: Why did the AG also note the pending-litigation exemption?
A: Because Moore mentioned in his correspondence that he was considering civil litigation against the other driver. Section 10002(o)(9) covers records pertaining to pending or potential litigation. The AG did not need to reach this exemption because the investigatory-files exemption disposed of the request, but the DSP raised it as a backup.
Q: Does FOIA require DSP to answer questions or compile lists?
A: No. The opinion notes that FOIA pertains only to existing records. The DSP is not required to "compile data, answer questions, or create records that do not exist."
Background and statutory framework
The investigatory-files exemption is in 29 Del. C. § 10002(o)(3): "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 Delaware Court of Chancery's 1980 Billingsley decision laid the groundwork: the exemption attaches early (as soon as a public body learns of a potential issue) and survives the close of investigation. AG opinions in 1998, 2005, 2017, and beyond have reinforced this. Recent applications include 25-IB14 (photographs and video footage of a law-enforcement encounter were properly denied) and 24-IB11 (records of date and type of calls for service to a particular residence were properly denied).
The standard of review under § 10005(c) is whether the public body has met its burden. Where a request is "clear on the face" that the records pertain to a law-enforcement investigation, no separate sworn affidavit is required to support the exemption; the request itself triggers it. The DSP did not have to do anything more than identify the exemption and point to the law-enforcement encounter described in Moore's request.
Citations and references
Statutes:
- 29 Del. C. § 10002(o)(3) (investigatory files exemption)
- 29 Del. C. § 10002(o)(9) (pending-litigation exemption)
- 29 Del. C. § 10005 (FOIA enforcement)
Cases:
- News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980) (exemption survives investigation closure)
- Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021) (burden of proof framework)
Prior AG opinions:
- Del. Op. Att'y Gen. 17-IB05; 17-IB47; 05-IB16; 98-IB13; 25-IB14; 24-IB11 (cumulative line of opinions on the investigatory-files exemption)
Source
- Landing page: https://attorneygeneral.delaware.gov/2026/02/25/26-ib10-02-25-2026-foia-opinion-letter-to-brenden-moore-re-delaware-state-police/
- Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2026/03/Attorney-General-Opinion-No.-26-IB10.pdf
Original opinion text
DEPARTMENT OF JUSTICE
KATHLEEN JENNINGS
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801
ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 26-IB10
February 25, 2026
VIA EMAIL
Brenden Moore
[email protected]
RE: FOIA Petition Regarding the Delaware State Police, Department of Safety and Homeland Security
Dear Mr. Moore:
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 June 19, 2025, you submitted a FOIA request to the DSP. The request described an incident occurring between you and a second vehicle on a roadway, which resulted in a police officer response. In addition to asking about procedural processes, you sought a list of records related to this incident, including body and dash camera footage, incident or police reports, radio communications or dispatch records, officer identification information, vehicle registration information for the other involved vehicle, and any reports or documentation related to your visit to DSP Troop 9. You also requested records of any traffic stops involving you in the Middletown area in the past six months. The DSP denied this request on July 7, 2025. On November 19, 2025, you submitted this same request, noting that the investigation is now over and the request can no longer be denied based on a pending investigation. The DSP replied on December 15, 2025, asserting to the extent that the DSP had existing records, they would be exempt from disclosure under FOIA pursuant to the exemptions under 29 Del. C. § 10002(o)(3) for investigatory file records for criminal law enforcement purposes and 29 Del. C. § 10002(o)(9) for records pertaining to pending or potential litigation. The response noted that the DSP is not required to compile data, answer questions, or create records that do not exist. The DSP also stated that the investigatory files exemption continues to apply even after the investigation is completed. This Petition followed.
In the Petition, you contend that the DSP improperly denied your request twice due to an unspecified investigation. You believe that the DSP has opened bad faith investigations to purposefully delay or prevent the disclosure of the requested records under FOIA.
On February 6, 2026, the DSP, through its legal counsel, replied to the Petition ("Response"). The DSP contends that it is well established that any records pertaining to traffic and criminal incidents, including video footage taken by law enforcement, fall within the investigatory files exemption. The DSP argues that the records you requested, which pertain to a specific traffic incident and other unspecified traffic stops, clearly fall within the investigatory files exception. Further, the DSP points out that your requests indicate that you intend to pursue litigation, noting your statements that you sought some information for civil litigation purposes against the other driver and that any retaliation resulting from your letter would be "further cause" for litigation. Finally, the DSP asserts that portions of your request seek answers to questions, and FOIA does not require a public body to answer questions.
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." "[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 records related to a law enforcement encounter during a traffic incident and other potential law enforcement encounters through unidentified traffic stops; such records, on their face, pertain to an investigation for civil or criminal law enforcement purposes. Thus, the requested records are considered part of law enforcement investigatory files and are 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 records.
Very truly yours,
Daniel Logan
Chief Deputy Attorney General
cc: Joseph C. Handlon, Deputy Attorney General
Dorey L. Cole, Deputy Attorney General