As more and more police departments across the country adopt body cameras, a battle is heating up over when the public will have access to the videos captured by these devices.
The proposed laws vary in scope. A large number of them would completely exempt body camera videos from public record laws, although most of these bills leave an exception for subjects of the video, meaning they would have access to the videos. Some bills would exempt videos recorded in homes and other places where people have a reasonable expectation of privacy. And other bills have their own unique restrictions.
PINAC has identified around two dozens pieces of proposed legislation that would restrict the public’s access to body camera videos, which would defeat their purpose at a time when police are killing an average of more than three people a day:
- Arizona SB 1300: Under the initial version of the proposed law, body camera videos would “be released to the public only by a court order or a subpoena” except when an “incident involves a law enforcement officer’s use or attempted use of deadly physical force and the law enforcement agency consents to the release.” However, the bill was stripped of this and other language and now would only allow the state to conduct a study on body cameras if passed.
- California AB-66: Under the proposed law, there would be no special exemption for body camera videos, but all videos would need to receive “the approval of the head of the agency” before being released.
- Florida SB 248: Under the proposed law, body camera videos would be considered “confidential and exempt from” the sunshine law if they were taken inside a private residence, medical facility, or any “place that a reasonable person would expect to be private.” Only the subjects of the videos and residents whose homes were depicted in videos would be allowed to obtain copies absent a court order.
- Georgia is considering two bills:
- Georgia HB 32: Under the proposed law, body camera videos would “be deemed to be records of law enforcement,” which would mean they would not be subject to disclosure if they were part of an ongoing investigation or prosecution.
- Georgia SB 177: Under the proposed law, body camera videos would only be considered public records if a written complaint was filed by a subject of the video or a witness.
- Indiana HB 1225 / SB 454: The proposed law would not restrict the public disclosure of body camera videos, but would create a committee to study the issue of limiting the public’s access to videos.
- Iowa HF 452: Under the proposed law, body camera videos would “be kept confidential.” A video could only be disclosed to a subject of the video, a person whose property was seized or damaged in an investigation, or a person who makes a complaint related to the video.
- Kansas HB 2137 / SB 18: Under the proposed law, body camera videos would “be confidential and exempt from the Kansas open records act.” A video could only be disclosed to a subject of their video, people whose property was seized or damaged in an investigation, or people who make a complaint related to the video.
- Louisiana HB 183: Under the proposed law, body camera videos would be exempt “from the requirements provided for in Louisiana’s Public Records Law.”
- Massachusetts HB 2170: Under the proposed law, body camera videos would be exempt from the public records law and would “be kept confidential absent a court order.” Only subjects videos and their attorneys would be allowed to obtain copies.
- Michigan HB 4234: Under the proposed law, body camera videos “taken in a private place” would be “exempt from disclosure under the freedom of information act.” A video could only be disclosed to a subject of the video or a person whose property was seized or damaged in an investigation. Videos would also be exempt if they are “retained by a law enforcement agency in connection with an ongoing criminal investigation or an ongoing internal investigation.”
- Minnesota SF 498: Under the proposed law, body camera videos would be considered “private data on individuals or nonpublic data unless the recording occurred in a public place” and “the incident involved the use of a dangerous weapon by a peace officer or use of physical coercion by a peace officer that causes at least substantial bodily harm.” Subjects of the video can obtain copies, but the faces of any subjects who do not consent would be blurred out. The bill further states that even if the video falls under these criteria, “A law enforcement agency may withhold access to data that are public… or redact the data to the extent that the data are clearly offensive to common sensibilities.”
- Missouri HB 762: Under the proposed law, police departments would be “authorized to close records consisting of data from” body cameras. Subjects of videos would be allowed to obtain copies for use in court proceedings. Members of the public would be able to obtain a court order for the release of a video if they can show it would be in the public interest. The bill has been passed by the house.
- New Hampshire HB 617: Under the proposed law, body camera videos would be exempt from the state’s right-to-know law.
- Oregon HB 2571: Under the proposed law, body camera videos would be exempt from the public records law unless “Each member of the public who is recorded consents to the disclosure in writing” or the video depicts “the use of force by a law enforcement officer and the public interest requires disclosure of that particular recording.”
- South Carolina S. 47: Under the proposed law, “data recorded by a body-worn camera in a private place [would be] exempt from disclosure under the Freedom of Information Act.” Such videos could only be disclosed to subjects or a people whose property was seized or damaged in an investigation. Videos “retained by a law enforcement agency in connection with an ongoing criminal investigation or internal investigation” would also be exempt.
- Texas SB 158: Under the proposed law, a body camera video would be exempt from the open government law if it is related to “an incident under investigation.” Additionally, the law would exempt recordings “made in a private space or during a pedestrian or traffic stop” unless the subject of the video gives written permission. The bill has been approved by the senate.
- Utah HB 386: Under the proposed law, a body camera video recorded “in a situation that constitutes a reasonable expectation of privacy” would be considered “private” if it “does not constitute a recording of interest” or “can be used to identify an individual” and “is not relevant to a recording of evidence or a recording of interest.” A “recording of interest” refers to recordings of incidents where police officers draw or use firearms; detain, cite, arrest, seize, search, or execute a warrant; or where a police officer believes a complaint is likely. A subject of a video could also request that it be reclassified as a “recording of interest” when filing a complaint. The bill has been put on hold by state lawmakers who hope to study the issue of body cameras further before passing a law.
- Virginia HB 1534: Under the proposed law, body camera videos would “not be disclosed except pursuant to a court order or upon the request of a person who alleges that he has been subject to unlawful conduct committed by a law-enforcement officer or a law-enforcement officer who is alleged to have engaged in unlawful conduct or the employer of such officer.”
- Washington HB 1917: Under the proposed law, body camera videos would generally not be available under the public records act unless the requester is “a person directly involved in the incident recorded” and “does not intend to use the recording to intimidate, threaten, abuse, or harass any individual on the recording.” However, it would be possible for people who are not subjects of the video to obtain a court order for the video’s release if they can show that the public interest in disclosure outweighs the privacy interests of the subjects.
- Washington, D.C. Budget Support Act: Language in Mayor Muriel Bowser’s proposed Budget Support Act would give local police discretion over when to allow body camera videos to be disclosed to the public.
In addition to limiting when videos can be released to the public, some of the proposed body camera laws regulate when police officers can have the devices activated. Some of the laws require police to shut the cameras off when a member of the public asks them to. Some of the bills require or give police discretion to turn the cameras off in particular situations, such as when they are witnessing a sexual assault, witnessing nudity, witnessing a medical emergency, or speaking with undercover police officers and confidential informants.
Many of these bills jeopardize the main function of police body cameras, which is to make interactions between the police and public more transparent.
The bills are largely being proposed by well-meaning, but misguided legislators who are concerned about the privacy implications of body camera videos being made public.
These lawmakers generally appear to be overreacting, irrationally treating what is basically an old technology as something new and disruptive. Between dashboard cameras installed in police cruisers, surveillance cameras installed at police stations, jails, and other government buildings, and third party videos obtained by police during investigations, police have been dealing with public records requests for videos for decades.
While body cameras may be a recent innovation, many of the interactions they record are the same types of interactions that have been caught on video and consumed by the public for years.
Even though most of the bills which exempt body camera videos from public records laws include an exception for subjects of the video, they could still prevent the public from ever seeing videos of police misconduct incidents. Many municipalities insist on including non-disclosure agreements in legal settlements, essentially buying victims’ silence. Body camera privacy bills could similarly allow videos of police misconduct and brutality to become bargaining chips in lawsuits.
When municipalities settle police misconduct lawsuits, they also typically refuse to admit any wrongdoing. It’s important that videos get released to the public because if a municipality refuses to own up to misconduct, it will still be judged in the court of public opinion.
There is one major privacy concern that is unique to body cameras. As the American Civil Liberties Union noted in a policy paper on body cameras, “some recordings will be made inside people’s homes, whenever police enter — including in instances of consensual entry (e.g., responding to a burglary call, voluntarily participating in an investigation) and such things as domestic violence calls.”
This legitimate concern has led to a number of bills which exempt videos from disclosure if they are taken inside private places, but even these restrictions are generally not necessary. Most states have privacy exemptions to their Freedom of Information laws that are narrower but would still allow most of these videos to be withheld from the public. As the Reporters Committee for Freedom of the Press observes:
Body cameras may record sensitive material, such as the identity of a sexual abuse victim, a young child, or simply the interior of a home. Almost all states have privacy exemptions that allow this type of information to be withheld, but there still may be a public interest in disclosure in those situations – for example, if there is a questionable use of force inside someone’s home. Some states balance privacy exemptions with the public interest, which may allow these videos to be released.
Body camera legislation has a vital role to play in ensuring these are used for accountability instead of as tools for mass surveillance. For example, good body camera legislation could establish retention schedules for videos to prevent them from being deleted prematurely while ensuring they aren’t saved forever. It could also regulate when police can analyze body camera videos with facial recognition software.
Body camera legislation could also force police departments to adopt the technology in the first place, but it won’t be worth it if it also keeps the videos secret.