State legislatures seek to exempt police body camera footage from open records laws

Dozens of state legislatures across the United States are considering legislation that would exempt footage from police body-worn cameras, or “bodycams,” from disclosure under state open records laws, the Reporters Committee for Freedom of the Press has learned. Though the new technology is supposed to enhance transparency and accountability, the proposed measures may actually increase secrecy.

In recent years, state and local police departments across the country have pushed to adopt new bodycam programs. In the wake of the high-profile police killings of Eric Garner in Staten Island, New York and Michael Brown in Ferguson, Missouri, the pace of bodycam adoption has accelerated rapidly. Dozens, if not hundreds, of law enforcement agencies have procured bodycams or announced their intent to do so in recent months. A 2014 report by the Police Executive Research Forum (PERF) and the Department of Justice’s Community Oriented Policing Services (COPS) illustrates the benefits of bodycams as an important tool in enhancing police accountability and transparency, and improving police-community relations. More recently, President Obama has called on Congress for hundreds of millions of dollars to fund state bodycam programs. According to at least one study, the adoption of bodycams has corresponded to a massive reduction in police “use of force incidents” as well as a decrease in the number of citizen complaints against police.

Now, new state measures threaten to impede public access to bodycam footage and undermine the technology’s ability to enhance transparency and accountability. The measures, currently under consideration in California, Florida, Maryland, Michigan, Minnesota, Missouri, Utah, Kansas, Washington, and other states, attempt to address various privacy and security concerns implicated by law enforcement agencies’ use of bodycams.

In North Dakota, for example, House Bill 1264 would exempt images taken with a bodycam “in a private place” from disclosure under state open records law, reflecting concerns that videos and images captured within residents’ homes may implicate important privacy interests. A proposed Michigan bill likewise would exempt recordings taken “in a private place” from disclosure, unless the individual requesting disclosure was the subject of the recording. This bill would effectively bar the press from requesting public records taken in a “private place.” A proposed Florida bill seeks to reconcile competing interests in privacy and transparency. Senate Bill 248 would exempt footage from disclosure if it is taken “within the interior of a private residence,” at a health care, mental health, or social services facility, “at the scene of a medical emergency,” or in a location where a person depicted in the footage has a “reasonable” expectation of privacy. Transparency advocates are concerned that exemptions for footage taken in a “private place” could be broadly interpreted and shield many videos from public access.

A more drastic measure being considered in California threatens to eviscerate almost all public access to footage. Assembly Bill 1246 would exempt all bodycam recordings from disclosure under the Public Records Act because “[t]he need to protect individual privacy from the public disclosure of images captured by a body worn camera outweighs the interest in the public disclosure of that information.” Under the California Public Records Act, police departments would still be permitted to use their discretion to release footage, raising concerns that police agencies would release only footage that appears favorable to their position in a given controversy.

Efforts to shield bodycam footage from release pursuant to open records laws are rooted in concerns that the privacy rights of many people who interact with the police, especially in their own homes, would be violated if footage of those interactions were later released. In Washington, D.C., the Reporters Committee has submitted two requests to the Metropolitan Police Department seeking access to bodycam videos from its pilot program. The department has completely denied all requests for the footage, stating that it lacks the technological capability to conduct redactions that it believes are necessary to protect privacy interests. Former D.C. Mayor Vincent Gray upheld that decision in an appeal submitted by the Reporters Committee, despite evidence that such videos can easily be redacted with modern video editing tools.

Almost all state open records laws contain various exemptions that operate on a case-by-case basis for records that have serious privacy implications or that are investigatory in nature. These exemptions are often balanced against the public interest in disclosure of the records. Exempting large categories of bodycam footage from open records requirements, in contrast, would impose a blanket rule preventing disclosure, and circumvent the analysis of the privacy or investigative interests for any given record.

Bodycam footage that has been released by law enforcement agencies has already proven its value in promoting transparency, and provided valuable information for reporters across the nation. In Denver, a police officer was suspended for four days after using excessive force in arresting a suspect. Bodycam footage of the incident was obtained by a local CBS station pursuant to a public records request. It not only showed the public exactly why the officer was suspended, but also contradicted the officer’s initial statements as to the nature of the force that was used. An independent office that monitors the police in Denver wrote that it was “troubled by [the officer’s] statements that his knee had been on the ‘suspect’s shoulders’ … rather than that he had his knee across the back of the suspect’s neck, as the video footage depicted.”

Measures that would largely or entirely exempt body camera footage from disclosure contradict recommendations from the report released by PERF and COPS that the footage be made available pursuant to “a broad disclosure policy to promote agency transparency and accountability.” As Chuck Wexler, the Executive Director of PERF, wrote in the same report, “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.” State legislation that would exempt these records from disclosure signals that these records are held not for the benefit of the public, but only for police use.