More states set privacy restrictions on bodycam video

Sophie Murguia | Freedom of Information | News | June 29, 2016

The past month has seen a flurry of legislative activity by states seeking to regulate access to video from police body cameras. New Hampshire, Minnesota and Louisiana recently passed laws exempting some video from disclosure, while several other states are considering bills that place privacy restrictions on access.

Bodycams have become increasingly popular as tools to ensure police transparency, but releasing the footage has prompted privacy concerns. Most state open records laws would consider body camera videos to be public records, but also include some exemptions from release for records that would violate a subject's privacy.

The New Hampshire law, signed June 24, says that body camera recordings are only public records if they show restraint or use of force by an officer, the discharge of a gun or “an encounter that results in an arrest for a felony-level offense.” Any part of a recording that invades someone’s privacy is exempt from disclosure. The law also lays out rules for how body-worn cameras should be used and when officers should activate them.

The Minnesota law also exempts most body camera video from release. But unlike in New Hampshire, Minnesota will make video of an officer’s use of force public only if the force “results in substantial bodily harm.” Footage can also be released in certain cases in which an officer discharges a firearm or the subject of a video requests that it be public. Additionally, footage can be redacted or withheld if it is “clearly offensive to common sensibilities.”

The Minnesota Law Enforcement Coalition supported the law’s extensive privacy restrictions.

“Body-worn cameras capture incidents up-close, in real time and the data subjects are often people in the midst of traumatic circumstances or embarrassing situations,” leaders of the coalition wrote in a letter to Governor Mark Dayton. “The data classification in this bill protects the privacy of crime victims, witnesses to crime and even the average Minnesotan who might ask a police officer for directions or gets ticketed for speeding.”

But some civil rights groups, including the Minnesota ACLU and the local NAACP, worried that the law would not provide adequate police accountability. For instance, the organizations said that bodycam video showing any use of force by a police officer should be a public record.

Kevin Goldberg, president of the D.C. Open Government Coalition, said that under the new Minnesota law, “there are a lot of things that would not be public that very well should be.” Goldberg argued that the privacy exemptions that already exist under state public records laws could be applied to any situation involving body cameras.

“I understand that body cameras sometimes present novel questions involving personal privacy, and people are afraid of the implications,” Goldberg said. “However, I don’t think we need to legislate answers here.”

Goldberg said that the rise of body cameras has drawn attention to privacy issues surrounding footage of sexual assault and domestic violence victims, as well as footage taken inside private homes.

Meanwhile, the Louisiana law has set privacy restrictions that are similar to those in the state’s current public records law. The new law says that bodycam footage is exempt from disclosure if the agency in charge of the record determines that releasing it would “violate an individual’s reasonable expectation of privacy,” or if it is part of an ongoing investigation.

“It’s not going to change anything that we already have in place right now,” said Tyler Gamble, a spokesman for the New Orleans Police Department.

Gamble said the department already releases video in response to media and other requests in accordance with the Louisiana Public Records Act. Last week, New Orleans police released body camera footage of three officers who were fired for being dishonest about the use of force against a handcuffed suspect.

Chad Marlow, the national ACLU’s advocacy and policy counsel, said he was concerned about the part of the Louisiana law specifying that the custodian of a record can decide whether it would violate someone’s privacy.

“That’s a little bit like the fox guarding the henhouse,” he said. “It’s an ambiguous standard being determined by a non-neutral arbiter.”

A bill in Missouri outlining certain privacy restrictions also recently passed the state legislature and has been sent to the governor. The Reporters Committee maintains a map of proposed and existing bodycam laws on its website. So far in 2016, six states have approved new body camera access laws.

Among the states considering legislation this year is North Carolina, which recently introduced a bill that would exempt all bodycam and dash cam footage from public records laws. The bill would mean that members of the public could not access body camera video without a court order. A person depicted in a recording could request to see it, although the bill lists various reasons why the head of a law enforcement agency could deny the request.

Reporters Committee litigation director Katie Townsend appeared on CNN earlier this month to discuss the North Carolina bill. The bill would make it especially difficult for journalists to see bodycam footage, Townsend said.

The bill received approval from the North Carolina House on June 27 and now goes to the state Senate. It could become one of the most restrictive body camera laws in the nation if passed.