Can a Delaware town withhold surveillance video of a Town Hall confrontation when criminal charges are still pending?

Official title

18-IB45 10/5/2018 FOIA Opinion Letter to Mr. Craig O'Donnell re: FOIA Complaint Concerning the Town of Dewey Beach

Plain-English summary

A Dover Post reporter requested surveillance video from a Dewey Beach Town Hall parking lot that captured a confrontation between a private citizen and a Town committee chairman. The Town denied the request, citing the investigatory-files exemption in Delaware FOIA. The reporter argued the public interest in the video was high, the underlying investigation had effectively closed, the Town's counsel (who was also a reporter for another outlet) might have viewed it, and other police agencies in Delaware had released similar videos in the past.

The AG rejected each argument. The Criminal Division of the Delaware DOJ confirmed the matter was still active, with trial scheduled for October 2018. That placed the video squarely inside 29 Del. C. § 10002(l)(3), which excludes "investigatory files compiled for civil or criminal law-enforcement purposes" from the definition of "public record." Public interest in a record does not override a clear statutory exemption. Town counsel's potential viewing of the video had no effect on its FOIA status (and counsel said he had not viewed it). And the fact that other public bodies sometimes voluntarily waive a FOIA exemption does not require this one to do so.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the investigatory-files exemption?

29 Del. C. § 10002(l)(3) at the time excluded from the FOIA definition of "public record" any "investigatory files compiled for civil or criminal law-enforcement purposes." Once a record is inside such a file and the matter is active, the document is not a "public record" at all, and the public body's denial does not require any further justification (such as a balancing test).

Could the reporter argue public interest?

He did, but unsuccessfully. The AG was clear that public interest is not a factor that overcomes the (l)(3) exemption. The statute defines "public record" by category; if a record falls outside the definition, no public interest argument brings it back inside.

Did it matter that other agencies had released similar videos?

No. The opinion held that whether similar records have been released by other public bodies has no bearing on whether the exemption was properly applied here. A voluntary release by one body does not require another body to release a similar record. Each body holds its own decision.

What about Town counsel possibly viewing the video?

The Town's counsel confirmed he had not viewed it, but the AG added that even if he had, that fact would not have been "probative in determining whether the video is a 'public record.'" Access by one party does not unwind the exemption.

Could the video come out through the criminal case?

The AG flagged this as a separate channel ("whether certain investigative records may become available through the criminal court proceeding is not a question under FOIA"). Trial discovery and Rule of Court production are governed by separate rules. The Town also said the video may be releasable "upon conclusion of the case" per Delaware practice, suggesting that the same record could change FOIA status once the investigation closed.

Background and statutory framework

Delaware FOIA at 29 Del. C. § 10002(l) defines "public record" by enumeration and exclusion. Subsection (l)(3) carves out "investigatory files compiled for civil or criminal law-enforcement purposes." Once a record sits inside such a file and the matter is active, the document is not a "public record" at all, and the public body's denial does not require any further justification such as a balancing test.

The opinion also treated the exemption as permissive from the public body's standpoint: a body may voluntarily release a record otherwise covered, but no one can compel that release through FOIA.

Citations

• 29 Del. C. § 10001 (declaration of policy)
• 29 Del. C. § 10002(l)(3) (investigatory-files exemption)
• 29 Del. C. § 10005(e) (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/05/18-ib45-10-5-2018-foia-opinion-letter-mr-craig-odonnell-re-foia-complaint-concerning-town-dewey-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB45.pdf

Original opinion text

DEPARTMENT OF JUSTICE
NEW CASTLE COUNTY
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

MATTHEW P. DENN
ATTORNEY GENERAL

CIVIL DIVISION (302) 577-8400
FAX: (302) 577-6630
CRIMINAL DIVISION (302) 577-8500
FAX: (302) 577-2496
FRAUD DIVISION (302) 577-8600
FAX: (302) 577-6499

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion 18-IB45
October 4, 2018
VIA EMAIL
Craig O'Donnell, Dover Post
c/o [email protected]
RE:

FOIA Petition Regarding the Town of Dewey Beach

Dear Mr. O'Donnell:
We write in response to your correspondence alleging that the Town of Dewey Beach
("Town") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007
("FOIA"). We treat your correspondence as a Petition for a determination pursuant to 29 Del. C.
§ 10005(e) regarding whether a violation of FOIA has occurred or is about to occur. Because the
requested record is part of an investigatory file, we find that the Town has not violated FOIA as
alleged.
BACKGROUND
On August 22, 2018, you requested the surveillance video of a confrontation between two
individuals in the parking lot of Dewey Beach Town Hall. You allege that this confrontation
between a private citizen and Town committee chairman arose out of the citizen's removal of a
document from a public meeting. According to your Petition, the Town denied your request on
the basis that the video was exempted from the definition of "public record" in the FOIA statute,
because the video is part of an investigatory file.
You then sent a Petition to this Office, alleging that the video was improperly withheld due
to: 1) the significant public interest in the video; 2) the closing of the investigation related to the
incident in the video; 3) unequal media access to the video by the Town's counsel who is also a
reporter and who you assumed viewed the video; and 4) the previous release of other videos in
investigative files in Delaware. By letter dated September 25, 2018 from Town counsel
("Response"), the Town denied any violation of FOIA, asserting that the video is part of an
investigatory file for criminal enforcement by the Criminal Division of the Delaware Department
of Justice and stating that the investigation has not closed. Trial is scheduled for October 2018.
Town counsel further stated that he has not viewed the video, and upon conclusion of the case, the
video may then be released per state and federal precedent in Delaware.
DISCUSSION
One of FOIA's primary purposes is to grant citizens access to public records. However,
FOIA exempts several types of records from the definition of "public record," including
"investigatory files compiled for civil or criminal law-enforcement purposes." Here, the Town
has indicated that the requested video is part of an investigative file with a criminal case currently
pending. These circumstances fall squarely within the exemption, and thus, we find that the
Town's denial of your request did not violate FOIA as alleged.
CONCLUSION
These circumstances fall squarely within the exemption. Under the law, the issues of public
interest, whether Town counsel may have viewed this record, and whether similar public records
have been released by other public bodies do not have bearing on whether this exemption has been
properly applied. Thus, we find that the Town's denial of your request did not violate FOIA as
alleged.
Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General
Approved:
/s/ Allison E. Reardon
Allison E. Reardon
State Solicitor
cc:

John F. Brady, Esq. (via email)