Can an insurance company defending a fraud claim get Wilmington police body camera and street surveillance footage under FOIA?

Plain-English summary

Defense lawyer Richard Funke, representing Progressive Northern Insurance Company, asked the City of Wilmington for two kinds of recordings of an August 2022 motor vehicle accident: (1) body camera footage from three officers (a police officer who wrote the report and two canine officers who spoke to unidentified witnesses), and (2) city-watch surveillance footage from the area. Funke wanted the body cam footage to identify witnesses; he wanted surveillance footage to determine if the driver was alone before the accident. The City verbally declined, calling it police investigative material, and offered only an in-person viewing in the City law office (no copies). Funke filed a petition.

The AG split the result:

1. Body camera footage: properly withheld. The Wilmington police body cam policy says cameras activate when officers exercise official police powers and the recordings exist to "improve the quality and reliability of investigations and increase transparency." That is investigatory work product. The footage documents the officer's investigation at the scene. Under the investigatory files exemption (§ 10002(o)(3)) and News-Journal v. Billingsley (1980), the exemption attaches as soon as the public body is aware of a potential issue and survives after the investigation closes. So whether or not an active investigation was pending in November 2022 did not matter.

2. City-watch surveillance footage: not properly withheld. The City's response made no specific argument for why street surveillance video falls under the investigatory files exemption. Without that justification, the City did not meet its § 10005(c) burden. The AG recommended production, subject to other applicable exemptions or laws (which might cover identifiable bystanders, but not the bare existence of the footage).

3. Potential litigation exemption: not applicable. Section 10002(o)(9) exempts records "pertaining to pending or potential litigation." Op. 18-IB10 limits this to litigation against the public body or a closely affiliated person. Funke's anticipated suit is against the driver/policyholder, not the City. So the City could not invoke § 10002(o)(9).

4. Victims' Bill of Rights: The City raised this as a barrier to disclosing non-law-enforcement witness identities. The AG did not need to reach the question because the body cam was already exempt on other grounds.

What this means for you

If you are a civil or insurance litigator seeking police footage in Delaware

The opinion holds that the Wilmington officers' body camera footage was properly withheld under the investigatory files exemption in § 10002(o)(3). It documents the officers' investigation at the accident scene, and under News-Journal v. Billingsley the exemption attaches once the public body becomes aware of a potential issue and survives after the investigation ends, so it did not matter whether an investigation was pending when the request was filed. The opinion also holds that the potential-litigation exemption did not apply, because the records were not sought from the public body (or a closely affiliated party) that is the subject of the anticipated suit.

If you handle FOIA at a Delaware municipality

The opinion holds the body camera denial was supported, relying on the City's body camera policy and the investigatory files exemption. The surveillance-footage denial failed because the City's Response presented no argument for why the city-watch footage fell under the investigatory files exemption, so the City did not meet its § 10005(c) burden. The AG recommended the City produce the surveillance footage to the extent compliant with any other applicable exemptions or laws.

If you are a Delaware police accountability advocate

The opinion draws a line: footage created by officers exercising police powers is investigatory work covered by § 10002(o)(3), but the City could not withhold ambient city-watch surveillance footage on the same theory without supporting facts.

If you are a witness who appeared on a police body cam in Delaware

The opinion holds the body camera footage of the accident scene, which captured witnesses speaking to officers, was exempt as an investigatory file. The City also raised the Victims' Bill of Rights as a bar to disclosing non-law-enforcement witness identities, but the AG did not reach that argument because the footage was already exempt on other grounds.

Common questions

Q: Why is body cam footage exempt when officers say it's there for transparency?
A: The City's policy describes the footage as a tool to "improve the quality and reliability of investigations and increase transparency," and the AG held that it documents the officer's investigation and is compiled for civil or criminal law-enforcement purposes. The transparency goal stated in the policy did not change that the footage is part of the investigatory file.

Q: When does the investigatory files exemption start and end?
A: The opinion states it attaches at the public body's initial notice of a potential issue and survives after the investigation is completed (citing News-Journal v. Billingsley, 1980).

Q: Can a police agency refuse to produce city-watch surveillance footage just by calling it "police material"?
A: Not without support. The City's Response presented no argument for why the surveillance footage fell under the investigatory files exemption, so the AG found the City did not meet its § 10005(c) burden and recommended production subject to other applicable exemptions or laws.

Q: What is the "potential litigation" exemption and why didn't it apply here?
A: Section 10002(o)(9) exempts "records pertaining to pending or potential litigation which are not records of any court." The opinion, following Op. 18-IB10, reads it to apply only to potential litigation against the agency from which the records are sought or a closely affiliated party. Progressive's anticipated suit was against the driver, not the City, so the exemption did not apply.

Q: Did the City have to give Funke copies, or was in-person viewing enough?
A: The City offered to let Funke view the videos at the City law office, and he declined because he wanted copies. The opinion did not decide whether in-person viewing alone satisfies FOIA; it resolved the body camera footage as exempt and the surveillance footage as improperly withheld.

Q: What is the Victims' Bill of Rights?
A: The City raised it as a bar to disclosing the identities of non-law-enforcement witnesses. The opinion describes it that way but did not reach the issue, because the body camera footage was exempt on other grounds.

Background and statutory framework

Investigatory files exemption. § 10002(o)(3) covers 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." News-Journal v. Billingsley (1980) makes the exemption broad and durable.

Potential litigation exemption. § 10002(o)(9) covers "records pertaining to pending or potential litigation which are not records of any court." Op. 18-IB10 narrows it: the exemption only protects an agency in its capacity as a litigant or potential litigant, not third parties hoping to do private discovery through FOIA.

Body cam policies. Wilmington Police Department's body cam policy (attached to the response) limits viewing to official law enforcement purposes, requires activation during exercise of police powers, and frames the system as a tool for investigation quality and transparency. The policy itself becomes the factual basis for the investigatory files claim.

Citations and references

Statutes:

• 29 Del. C. § 10002(o)(3) (investigatory files)
• 29 Del. C. § 10002(o)(9) (potential litigation)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• News-Journal Co. v. Billingsley, 1980 WL 3043 (Del. Ch. Nov. 20, 1980)

Prior AG opinions:

• Del. Op. Att'y Gen. 18-IB10 (Feb. 20, 2018) (potential litigation exemption limited to public body's own litigation)

Source

• Landing page: https://attorneygeneral.delaware.gov/2022/11/18/22-ib43-11-18-2022-foia-opinion-letter-to-richard-gabler-funke-re-foia-complaint-concerning-the-city-of-wilmington/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2022/11/Attorney-General-Opinion-No.-22-IB43.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. 22-IB43
November 18, 2022

VIA EMAIL
Richard Gabler Funke
Mintzer Sarowitz Zeris Ledva & Meyers LLP
[email protected]

RE:

FOIA Petition Regarding the City of Wilmington

Dear Mr. Funke:
We write in response to your correspondence on behalf of your client, Progressive Northern
Insurance Company, alleging that the City of Wilmington violated Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") in connection with your requests for body
camera footage and city surveillance footage. We treat this correspondence as a Petition for a
determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred
or is about to occur. As discussed more fully herein, we determine that the City appropriately
withheld the requested body camera footage, as it is exempt pursuant to the investigatory files
exemption. However, we find that the City failed to meet its burden of proof to justify its denial
of access to the city surveillance footage.

BACKGROUND
On August 4 and 5, 2022, you submitted two requests on your client's behalf to the City,
seeking the body camera footage and city watch surveillance footage of a motor vehicle accident
that occurred in the City. A City police officer's report noted that unidentified witnesses to the
accident spoke to two canine officers at the accident scene. As your client intends to file litigation
about potential insurance fraud in connection with the accident, you claim that all three officers'
body camera footage is necessary to identify those witnesses. In addition, the city surveillance
footage would allow you to determine if the driver was alone in her vehicle before the accident.
1

In the Petition, you assert that the City's counsel verbally declined your request on
September 8, 2022, as the footage is part of the police investigative materials. You state that you
sought to resolve this matter with the City amicably through a discovery agreement. However, the
City stated that it had viewed the videos, and there was nothing to report. When you asked again
for a copy of the footage, the City offered to allow you to view the videos in the City law office.
Because you wanted copies, you refused this offer. This Petition followed.
In the Petition, you argue that it "cannot logically be said that all body camera and
surveillance footage is compiled for pending investigations, pretrial and presentence
investigations, and child custody and adoption files." 1 You contend that the investigatory files
exemption cannot apply, as you believe no investigation was pending at the time you filed your
requests. Additionally, you argue that restricting access to this footage would impede the justice
system, as it may be the only means of determining the validity of the insurance claims submitted
to your client.
The City's counsel replied to the Petition on October 26, 2022 ("Response"). The City
states that its Police FOIA Coordinator responded to the requests in writing and provided copies
of the emails. The City notes that it has not received a subpoena nor has a court action been
commenced against the City. The City states that it issued a uniform collision report and civil and
criminal infractions to both drivers. The City argues that body camera footage is an audiovisual
record of the officer's investigation into the cause of the accident and any contributing factors,
which means it is part of the investigatory file compiled for civil or criminal law enforcement. The
City attached a copy of its body camera policy, which prohibits viewing of any body camera
footage, other than for official law enforcement purposes. The policy also states that officers are
to activate their cameras when exercising official police powers or when they believe they are
likely to exercise their police powers; the footage is a tool to document events, actions and
conditions between police and the public and is used to enhance the quality of police investigations
and increase transparency. The City notes that this Office has found uniform collision reports, fire
marshal records, automated gunfire detection systems, and criminal complaints and reports to be
subject to the investigatory files exemption, and the City contends that the body camera footage is
no different. The City points out that the investigatory files exemption attaches upon the public
body becoming aware of a potential issue and survives the termination of the investigation. In
addition, the City maintains that your request appears to be an improper use of FOIA to obtain
records for anticipated litigation. Finally, the request for the footage is barred by the Victims'
Bill of Rights, which prohibits the City from disclosing the identity of non-law enforcement witnesses.

DISCUSSION
Under FOIA, "public records shall be open to inspection and copying during regular
business hours by the custodian of the records for the appropriate public body," and "[r]easonable
access to and reasonable facilities for copying of these records shall not be denied to any citizen." 2
1

Petition (emphasis in original).

2

29 Del. C. § 10003(a).
2

However, "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" are exempt from the definition of "public
record." 3 In addition, "records pertaining to pending or potential litigation which are not records
of any court" are exempt from disclosure. 4 The public body carries 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 As a preliminary matter, we determine that the City's invocation of the potential
litigation exemption is not appropriate in this instance, because the records are not sought from the
public body, or a related party, who is the subject of the potential lawsuit. 7
The City contends that the body camera footage is exempt under the investigatory files
exemption. We agree. The City police force is a law enforcement agency that uses the body
camera footage for purposes of its law enforcement duties. The City policy states that the cameras
are to be activated while exercising official police powers, or whenever an officer believes they
are likely to exercise their police powers. According to the policy, the recordings are intended to
"improve the quality and reliability of investigations and increase transparency." 8 Hence, the
footage documents the officer's investigation and interactions at a scene and is compiled for
purposes of criminal or civil law enforcement. The investigatory files exemption attaches at the
public body's initial notice of a potential issue. 9 Accordingly, we find that the body camera
footage is exempt pursuant to the investigatory files exemption.

3

29 Del. C. § 10002(o)(3).

4

29 Del. C. § 10002(o)(9).

5

29 Del. C. § 10005(c).

6

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

7

Del. Op. Att'y Gen. 18-IB10, 2018 WL 1405826, at *5 (Feb. 20, 2018) ("Addressing the
second issue first, we believe that the 'potential litigation' exemption can only be reconciled with
the broader language of the FOIA statute if it is limited to potential litigation against the
government agency from which the documents in question are sought, or some closely affiliated
person or entity. To interpret the statute otherwise would prevent citizens from conducting basic
investigations that might be necessary to them later gaining access to the courts to remedy some
legal wrong committed by a party wholly unrelated to the government entity in question - even if
the documents sought in the course of those investigations would otherwise be public documents
freely available to any other citizen seeking them.").
8

Response, Ex. B.

9

News-Journal Co. v. Billingsley, 1980 WL 3043, at 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); see also Del.
Op. Att'y Gen. 17-IB47, 2017 WL 4652343, at 1 (Sept. 22, 2017); Del. Op. Att'y Gen. 05-IB16,
3

With respect to the surveillance footage, the City's Response presents no arguments to
justify its denial of this footage under the investigatory files exemption. As the City has not met
its burden of proof for withholding this footage, we determine that the City violated FOIA by
refusing access to this footage. However, as the release of surveillance footage possibly implicates
other rights or concerns, we recommend that the City produce this footage, to the extent compliant
with any other applicable exemptions or laws.

CONCLUSION
For the reasons set forth above, we conclude that that the City did not violate FOIA by
refusing access to the body camera footage pursuant to the investigatory files exemption.
However, we find that the City failed to meet its burden of proof to justify its denial of access to
the city surveillance footage.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

John D. Hawley, Assistant City Solicitor

2005 WL 2334345, at 2 (Jun. 22, 2005); Del. Op. Att'y Gen. 98-IB13, 1998 WL 910199, at 1
(Dec. 8, 1998).
4