If a former Delaware police academy cadet asks for body-cam footage and his evaluations from the academy, can the city refuse by saying he's just trying to set up a lawsuit?

Official title

24-IB10 02/21/2024 FOIA Opinion Letter to Joshua Carter re: FOIA Complaint Concerning the City of Dover

Plain-English summary

Joshua Carter attended the Dover Municipal Police Academy from October 8 to November 28, 2023. On December 7, 2023, he submitted a detailed FOIA request to the City of Dover seeking: all body-camera footage involving him from any academy staff (specifically tac officers Master Cpl. W. Johnson, Cpl. Hudson, and PFC Burton); two specific videos that Master Cpl. Johnson took (his baton fight, and the entire OC spray training); all correspondence between the academy and the Town of Dewey Beach / Dewey Beach Police Department concerning him; and any notes, documentation, performance evaluations, or grades concerning him.

The City requested additional time on December 21, 2023 for legal review. After Carter followed up on January 21, 2024, the City sent a link with three body-cam videos and two internal documents. Carter said the response was incomplete; many requested records were missing. On January 23, 2024, the City sent another link and added a justification: federal FOIA "Exemption 7" (law-enforcement records).

Carter petitioned. He argued (1) the City was untimely, (2) the City had not formally identified the specific exempt material with redactions, and (3) the federal Exemption 7 reference was inapplicable to a Delaware FOIA proceeding.

The City's counsel submitted three submissions: (1) records would be released; (2) records were exempt under the Delaware potential-litigation exemption (29 Del. C. § 10002(o)(9)) and the parties might resolve outside the petition; (3) the second position was the City's final answer. The AG accepted the second/third Response: the City asserted that Carter sought records for purposes of potential litigation, FOIA cannot be used to circumvent court discovery, and the records could be subject to court-imposed protective orders.

The AG ruled partially for and partially against the City:

• The timeliness claim was moot once the City responded.
• The "formal letter listing redactions" claim failed: FOIA does not require a response in the format of a formal letter, nor does it require a public body to produce an index of records or parts of records denied.
• The potential-litigation exemption claim, however, failed for lack of evidentiary support. The opinion applies the Superior Court's two-prong test for the potential-litigation exemption: (1) litigation must be likely or reasonably foreseeable, and (2) there must be a clear nexus between the requested documents and the subject matter of the litigation. Objective signs that litigation is coming may include a written demand letter, prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with an expressed intent to sue. The City merely asserted the exemption without providing evidentiary support, so it did not meet its burden of proof. The AG found a FOIA violation and recommended the City supplement its response.

What this means for you

For Delaware police academy cadets and former cadets. The opinion holds that a bare assertion of the potential-litigation exemption does not justify withholding records. The public body carries the burden of proof, and a generic threat of suit does not satisfy it. The City had to point to objective signs that litigation was likely or reasonably foreseeable; because it provided none, the AG found a violation and recommended the City supplement its response.

For municipal attorneys defending FOIA denials based on potential litigation. The opinion holds that the public body bears the burden of proof and that merely asserting the potential-litigation exemption, without evidentiary support, fails. It notes that in certain circumstances a sworn affidavit may be required to meet that burden.

For police academy records managers. The opinion treats the requested training records (body-cam footage, evaluations, grades, correspondence) as subject to FOIA and finds the City did not justify withholding them under the potential-litigation exemption. It does not address how third-party privacy in training footage should be handled.

Common questions

What is the two-prong test for the potential-litigation exemption?
As stated in the opinion, the Superior Court of Delaware has adopted this Office's two-prong test: (1) litigation must be likely or reasonably foreseeable, and (2) there must be a clear nexus between the requested documents and the subject matter of the litigation.

What objective signs of foreseeable litigation does the opinion mention?
The opinion says a public body should look for objective signs that litigation is coming. These may include a written demand letter asserting a claim or demanding action, prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim and an expression of intent to sue.

Why did the City's exemption claim fail?
The opinion states the City's responses "merely asserted the potential litigation exemption without providing evidentiary support" to meet the standard, so the City did not carry its burden of proof.

What about the federal FOIA "Exemption 7" the City cited?
The City's January 23, 2024 response cited federal FOIA "Exemption 7," which the opinion describes as exempting records compiled for law-enforcement purposes that would disclose techniques and procedures and could be reasonably expected to endanger an individual's safety. The opinion's analysis turns on the Delaware potential-litigation exemption, not the federal provision.

Why was the formal-letter / redaction-index claim dismissed?
The opinion states that FOIA does not require a response to be issued in the format of a formal letter, nor is a public body required to produce an index, or any other compilation, as to each record or part of a record denied.

What is the City supposed to do now?
The opinion recommends that the City review its records and supplement its response in accordance with the opinion and the FOIA statute, including the timeframes set forth in Section 10003.

Background and statutory framework

29 Del. C. § 10002(o)(9) is the pending-or-potential-litigation exemption referenced in the opinion.

For the potential-litigation prong, the opinion applies the Superior Court's two-prong test (litigation likely or reasonably foreseeable; clear nexus between the records and the subject matter), and warns that construing "potential litigation" to include an unrealized or idle threat of litigation would seriously undermine the purpose of FOIA.

On the form of denial, the opinion holds that FOIA does not require a formal-letter format or an index of denied records.

29 Del. C. § 10005 governs the petition process, and the opinion states that in any action brought under Section 10005 the public body has the burden of proof to justify its denial of access, with a sworn affidavit required in certain circumstances.

Citations

• 29 Del. C. § 10002(o)(9): pending or potential litigation
• 29 Del. C. § 10003: reasonable access; response timeframes
• 29 Del. C. § 10005: petition; burden of proof
• 29 Del. C. §§ 10001-10008: Delaware FOIA chapter

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/02/21/24-ib10-02-21-2024-foia-opinion-letter-to-joshua-carter-re-foia-complaint-concerning-the-city-of-dover/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/02/Attorney-General-Opinion-No.-24-IB10.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. 24-IB10
February 21, 2024

VIA EMAIL
Joshua B. Carter
[email protected]

RE: FOIA Petition Regarding the City of Dover

Dear Mr. Carter:
We write in response to your correspondence alleging that the City of Dover 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 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we find that the City violated FOIA by failing to meet its burden to justify the denial of access to the requested records. We determine that no violation occurred with respect to the remaining claims in the Petition.

BACKGROUND
On December 7, 2023, you submitted a FOIA request to the City seeking various records related to your attendance of the City of Dover Municipal Police Academy:
I attended the Dover Municipal Police Academy from 10/8/2023 to 11/28/2023. I am requesting ALL body camera footage from any staff at the academy that involves myself. The three TAC officers were Master CPL. W. Johnson, CPL. Hudson, and PFC Burton of the Dover Police Department. I am also requesting the two camera videos that Master CPL Johnson took of my baton fight and the video he took of the entire class during the OC Spray training. I want ALL correspondence between the Dover Municipal Police Academy and the Town of Dewey Beach/Dewey Beach Police Department including emails and documentation concerning myself. I also want to see any notes/documentation/performance evaluations/grades concerning myself kept by the Dover Police Department / Dover Municipal Police Academy including those pertaining to any meetings. Known body camera dates: Monday November 27, 2023 / Thursday November 9th / Monday October 9th. OC Spray: Wednesday November 22, 2023 /Baton: Friday November 17th, 2023.

On December 21, 2023, the City Clerk's Office sent an email stating additional time was needed to complete the response, as legal advice was needed. The City estimated being able to provide a preliminary response and invoice for the costs by January 20, 2024. On January 21, 2024, you followed up regarding the request. On January 22, 2024, a Dover officer sent you a link to upload responsive records. The City Clerk's Office also sent an email noting that you had been provided this link. That same day, you replied that this link, with three body camera videos and two internal documents, did not include all the records you requested. You stated that the City owed you an additional response outlining the reasons that the other records were denied. Among the records you allege are missing are grades, certain evaluations, the class O.C. spray video, the baton test video, the correspondence with the Town of Dewey Beach, and any notes or write-ups you received while in the academy. On January 23, 2024, the City officer sent another link to download a zip file. This response also stated that the federal FOIA "Exemption 7" applies, which exempts records compiled for law enforcement purposes that would disclose techniques and procedures for law enforcement investigations or prosecutions and that could be reasonably expected to endanger the life or physical safety of an individual. This Petition followed.

In the Petition, you allege that the City failed to release documents in a timely manner and failed to fulfill the entirety of your request. You believe that other requested records must exist and assert that the City has failed to provide you with at least seven records. Additionally, you allege that the cited law enforcement exemptions do not apply to the records you requested. You contend that as a public body, the City is bound to provide redacted documents if some of the materials meet FOIA exemptions and the City has ignored your requests. You assert that the City has not provided a formal letter or email citing the specific material that is exempt or redacted.

On January 31, 2024 and February 1, 2024, the Town's counsel replied on its behalf to the Petition (collectively, "Responses"). The City asserts that you seek these records for the purposes of potential litigation, and the pending or potential litigation exemption in 29 Del. C. § 10002(o)(9) applies to the remaining records. The City asserts that FOIA is not a tool to circumvent a court's discovery process, in which the materials requested could be subject to a court-imposed protective order to safeguard public and personal safety.

DISCUSSION
FOIA requires that citizens be provided reasonable access to and reasonable facilities for copying of public records. In any action brought under Section 10005, 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. As the City provided a response, the Petition's timeliness claim is now moot.

The Petition also asserts that the City was required to send a formal letter citing the specific material redacted in response to the request. FOIA does not require a response to a request to be issued in the format of a formal letter, nor is a public body required to produce an index, or any other compilation, as to each record or part of a record denied. As such, we do not find a violation of FOIA in this regard.

Finally, the Petition alleges that the remaining records were improperly withheld. The City asserts that the records that were not produced are exempt under the potential litigation exemption. Governments always face some threat of suit, and construing "potential litigation" to include "an unrealized or idle threat of litigation would seriously undermine the purpose of [FOIA]." To address this dynamic, the Superior Court of Delaware has adopted this Office's two-prong test for the potential litigation exemption: "(1) litigation must be likely or reasonably foreseeable; and (2) there must be a 'clear nexus' between the requested documents and the subject matter of the litigation." "When determining whether litigation is 'likely or reasonably foreseeable,' the public body should look for objective signs that litigation is coming." These signs may include a "written demand letter in which a claim is asserted, or action is demanded, [which] may give rise to a proper inference that litigation will soon follow." Other indicators may include prior litigation between the parties, proof of ongoing litigation with similar claims, or retention of legal counsel with respect to the claim at issue and expression of an intent to sue. The Responses merely asserted the potential litigation exemption without providing evidentiary support to the meet this standard. As such, we find that the City did not meet its burden of proof and determine a violation occurred in this regard. We recommend that the City review its records and supplement its response to your request, in accordance with this Opinion and the FOIA statute, including the timeframes set forth in Section 10003.

CONCLUSION
Based on the foregoing, we conclude that the City violated FOIA by failing to meet its burden to justify the denial of access to the requested records. We determine that no violation occurred with respect to the remaining claims in the Petition.

Very truly yours,
/s/ Dorey L. Cole
Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis
Patricia A. Davis
State Solicitor

cc:
Nicholas H. Rodriguez, City Solicitor
Mark A. Denney, Jr., Attorney for the City of Dover Police Department