By Toby McIntosh and Lauren Harper
This article has been crossposted from FreedomInfo.org.
Bills to restrict or prevent the public disclosure of videos taken by police officers wearing cameras are sparking debate in state legislatures around the United States.
Anti-disclosure bills have been offered in half a dozen states, usually by legislators with law enforcement backgrounds.
“Video recordings should not be subject to open records requests,” testified Richard W. Van Houten, Jr., President of the Fort Worth Police Officers Alliance, at a listening session held Jan. 31 by President Obama’s task Force on 21st Century Policing.
The American Civil Liberties Union is weighing in, too, advocating that only the most significant videos be saved for possible release.
Freedom of information advocates dislike this proposal, and counter that existing public records laws already protect against disclosures that would breach personal privacy or interfere with law enforcement.
If the footage isn’t available, “body cam” supporters say, the promise of having silent watchdogs over police-citizen interactions will go unfulfilled.
After the shooting death of 18-year-old Michael Brown last year in Ferguson, Mo., President Obama asked Congress to buy 50,000 police body cameras – for $75 million – to promote accountability in police forces nationwide.
Some body camera pilot programs have shown a decrease in both complaints against police officers and police use of force (88 percent and 60 percent respectively in Rialto, Calif.) Many agree that in theory body cameras are a good idea. In practice, they pose real-world challenges.
Disclosure a Hot Topic
How much body cam footage would be disclosed, and what would be kept confidential, is surfacing as a contentious and complicated issue.
It’s largely settled that state FOI laws, which vary in their details, apply to all public records, including body cam videos, subject to exemptions.
The laws include exemptions to protect personal privacy and preserve the integrity of investigations and prosecutions.
Some guidance as to how they would apply to body cam footage can be derived from the treatment of 911 audio recordings and dashboard camera footage. But the application of state laws to body cam footage is undeveloped and unlitigated.
Although a vehement backlash against disclosure has emerged, it is premature to predict whether restrictive bills will pass, FreedomInfo.org, was told by activists on both sides.
Rule for Body Cams Use Will Affect Disclosure
Many policy choices to be made about what will be filmed, which in turn will affect what might be disclosed.
“This a very tough issue and is one that will become more of an issue,” said Lindsey Miller, an author of a comprehensive report on body camera policies by the Police Executive Research Forum (PERF).
The report observes, “A police department that deploys body-worn cameras is making a statement that it believes the actions of its officers are a matter of public record….” PERF is a research and policy organization in Washington whose members are the heads of police departments across the country. The September 2014 report was supported by the U.S. Department of Justice’s Office of Community Oriented Policing Services.
In hundreds of local jurisdictions, decisions are being made about the use of body cams, often with questions of privacy in mind.
Among the issues are:
- whether cameras should be turned off before an officer enters a private residence without a warrant,
- whether video-taping should be continuous,
- when should cameras be turned off,
- whether subjects need to be informed they are being taped,
- how to prevent manipulation of the footage and
- how long to retain the videos.
Once these decisions are made and cameras are rolling the policies on disclosing the videos are governed by state freedom of information laws.
“Most of these laws were written long before law enforcement agencies began deploying body-worn cameras, so the laws do not necessarily account for all of the considerations that must be made when police departments undertake a body-worn camera program,” according to the PERF report.
In some states, notably New York and North Carolina, provisions designed to protect police officers are likely to prevent the release of body cam videos.
In Los Angeles, the police chief says he won’t release video footage, setting up a likely confrontation with disclosure advocates.
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