Before the body-worn cameras start rolling: How open records laws impact police policy
A police department must understand its state's public records law, and any existing exemptions, before implementing body-worn cameras
At the end of 2014, the White House launched a $263 million program to equip 50,000 officers with body-worn cameras (BWCs). In 2016, 95 percent of large police departments surveyed said they’d implemented BWCs or were committed to.
In the rush for funding, some police departments did not pay adequate attention to the legal issues that accompany BWCs, and their associated costs. Central amongst these is the push-pull between transparency and public access to the video and the privacy of victims and other individuals caught on tape.
Every state has an open public records law. Most define a public record broadly enough to encompass BWC video. This makes the video subject to an open records or FOI (Freedom of Information) request. But most of these laws were written well before BWCs and their attendant privacy implications existed.
It is imperative a police department understand its state’s public records law, and any existing exemptions, before implementing BWCs. For example, in my home state of Alaska, BWC video is a “public record” and thus subject to inspection by any member of the public unless it meets a statutory exemption.
“Records or information compiled for law enforcement purposes, but only to the extent that the production of the law enforcement records or information
(A) could reasonably be expected to interfere with enforcement proceedings;
(B) would deprive a person of a right to a fair trial or an impartial adjudication;
(C) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness;
(D) could reasonably be expected to disclose the identity of a confidential source;
(E) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions;
(F) would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or
(G) could reasonably be expected to endanger the life or physical safety of an individual."
B and E require the agency seeking to exempt the video from disclosure to show that doing so “would” cause the harm, while the other exemptions only require a showing that disclosure “could” cause the harm. But making either showing could be an expensive proposition involving police, prosecutor or civil government attorney preparation, and court time.
As long as BWC video falls within a state’s “public record” definition, it must be stored and retained, and then – upon request – retrieved and reviewed before the decision to disclose (or fight disclosure) can even be made. It may also have to be redacted. The costs associated are significant. A department with 25 officers running body cameras 32 out of every 40 hours, 46 weeks a year, yields 36,800 hours of video.
Many places that decided to strap body cameras onto officers are scrambling after-the-fact to amend their public records law to exempt BWC video. Not surprisingly, their efforts are getting push back from citizen activists, the media and groups like the ACLU. The District of Columbia is an example.
In 2015, the Mayor touted outfitting every patrol officer with a BWC. She subsequently sought to deny public access to BWC video, undercutting her claim it would bring transparency. The Mayor’s pivot was apparently based on the police chief’s forecasts of the costs associated with open records requests for BWC video. Predictably, groups like the Reporters Committee for Freedom of the Press challenged the chief’s cost predictions but also noted,
“These are costs that should’ve been contemplated before the pilot was launched.”
Some statutes allow agencies to pass costs onto the requester. But departments should prepare for pushback on the grounds that the department is not using the most cost-efficient technology, or that the requested information is in the “public interest.”
Recording conversations, privacy and the Fourth Amendment
Those most vocal for monitoring police conduct are equally vehement that citizen privacy be protected. BWCs will capture people at their worst – impaired, abusive, profane, hysterical, devastated – and most personal – in domestic disturbances, as victims of sexual assault or child sexual abuse, in mental health crises and medical emergencies. BWCs will go into places where people have an expectation of privacy – like homes.
States vary as to whether they require the consent of both or just one party to conversations before recording them. [18 USC § 2511, the federal Wiretap Act, is a one-party consent law.] Within that framework, there may be different rules for police. My state has a one-party consent law as between citizens. But if the police want to surreptitiously record a conversation, Alaska’s Supreme Court has said the state constitution’s explicit privacy right requires they get a warrant – even if an informant participating in the conversation consents to the recording.
In Lopez v. U.S. (1963), the U.S. Supreme Court extended the “plain view” doctrine to recording, holding that officers may generally record what they can lawfully see or hear without violating the Fourth Amendment. But what if:
- The camera captures something the officer did not see or hear? Would this be more akin to thermal imaging from a public vantage point, which the Supreme Court held in Kyllo v. U.S. (2001) required a warrant?
- Something may be seen or heard only by reviewing the tape repeatedly, or in slow motion, or stop frame, or digitally enhancing it? Are these actions a separate search requiring a warrant?
The plain view exception is usually challenged by criminal defendants. What about people who end up not being charged with any crime? What about victims of sensitive crimes, witnesses or bystanders?
Know and plan before the cameras start rolling
Planning for BWCs should be done before deploying them in the field. This involves addressing legal and cost issues. To address the costs of BWCs departments must understand the evolving technology – such as automated redaction through software algorithms versus manual redaction. Otherwise, expect after-the-fact scrambling and pushback.