New D.C. bodycam policies too restrictive, critics testify

Open-government advocates warned District of Columbia officials last week that exemption of all police body-worn camera footage showing "assaults" will undermine the very purpose of the program, as will other provisions designed to delay or deny the release of footage to the public.

The discussion came at a D.C. Council committee's public hearing to discuss three proposed amendments regarding the Metropolitan Police Department’s bodycam program.

The debate centered on how to balance transparency and privacy concerns and whether police body-worn camera recordings should be granted special treatment outside the existing D.C. Freedom of Information Act.

“It is our view that body camera footage is just another public record in simply different format,” said Rebecca Snyder, the President of Maryland, Delaware and D.C. Press Association President.

One of the three bills discussed, B21-0356, called the Public Access to Body-Worn Camera Video Amendment Act of 2015, was introduced as an amendment to the D.C. FOIA by Mayor Muriel Bowser last month. The bill would limit public access to the body-worn camera recordings.

Adam Marshall, a legal fellow with the Reporters Committee, criticized the administration for failing to meaningfully incorporate the suggestions from the advisory group discussions last summer and instead adding even more exemptions to the D.C. FOIA.

The proposed amendment would add bodycam recordings “related to an incident involving domestic violence, stalking, sexual assault or assault” to the long list of records exempt from the public records law.

Open-government advocates voiced concerns over such broad language in the exemption, which Judiciary Committee Chair Kenyan McDuffie called “problematic.”

"As written, this exemption would appear to allow the MPD to withhold video of assaults committed by law enforcement personnel against civilians," Marshall said. "Yet, this is precisely the kind of event that the BWC program is intended to make more transparent."

Police Chief Cathy Lanier clarified that the word “assault” is not intended to include law enforcement officers’ use of force or cases involving police officers. She said that would be described as “use of force,” and admitted the need to work with the Judiciary Committee to clarify and adjust the language.

The provision to exclude any footage recorded “inside a personal residence” from the existing FOIA was also controversial. While all agreed that there are sensitive moments in private settings that need to be protected, some argued that the law should look closely at the context of the situation.

“What about a situation when an allegation of improper force is made against an officer during an event taken inside a private residence?” Marshall said. “Under the mayor’s proposed exemptions, this video would never be subject to disclosure.”

Snyder said the provision creates an “overly complex scenario that focuses only on format or geography of the footage rather than the content.”

Public Safety and Justice Deputy Mayor Kevin Donahue said the administration is trying to regulate a very new technology that might revolutionize policing.

“We are still determining whether or not there are unexpected, unprotected adversaries,” he said.

For instance, he said, some individuals might be hesitant to call the police knowing that their neighbors can get access to footage of what was going on inside the house.

Tuyet Duong, Interim Executive Director of Asian/Pacific Islander Domestic Violence Resource Project said that victims’ fears of law enforcement could be exacerbated by the presence of cameras.

A number of witnesses also questioned the provision that would require requestors to “identify with specificity the location, date and approximate time of the incident or event that may have been recorded.”

“In our experience dealing with FOIA in the district, it almost guarantees that it will get rejected,” D.C. Police Union Delroy Burton said. “Because the more specific you are with your request, the less likely you will get the information that you’re seeking.”

In response to plans to extend the time for compliance by city officials because of the time it takes to process videos, Marshall pointed out that two companies, including Taser, which provides body-worn cameras to D.C. police, have already come up with technologies that allow automatic redaction of faces.

He said “regulation, not legislation” is the way to address the intricacies of public access to body camera videos under D.C. FOIA. “A statute as fundamental as the D.C. FOIA should not be changed so drastically when body cam technology is still developing.”

Open-government advocates unanimously agreed that the new proposals are unnecessary as bodycam footage can be handled with the existing D.C. FOIA like all other government records are.

“The best place to start is to not do anything at all in this regard to FOIA,” D.C. Councilmember David Grosso said. “Just put it aside and have the FOIA law that we currently have in place to govern.”

No videos from the year-old pilot program requested under FOIA have been released to the public.