Access to police body camera videos
Q: I am a member of my state’s open government coalition. Like many states, ours is addressing issues surrounding a proposed implementation of police body cameras, including the accessibility of the resulting videos under our state’s public records law. Are there any resources you can point me to regarding how other states are handling these issues? In addition, I’d like to know more about how states and municipalities are responding to overly broad, gigantic requests, such as some here recently asking for every record ever created for an agency.
A: This is a very timely question. Throughout 2015, access to police body camera recordings was perhaps THE hot-button issue when it came to state public records laws. That is likely to be the case in 2016, as well. That’s why there are some resources that will help you compare enacted laws, proposed legislation and formal policies across the states and even down to local jurisdictions:
1. My “state” coalition (for which I’m currently the president), the DC Open Government Coalition, put together a state-by-state look at laws and legislative proposals affecting body cameras. It reviews how each state deals with four issues: when the cameras must be on and when they must be off, how long videos must be retained after recording and what might affect that time period (in terms of tolling the deadline for erasing a recording), how the law or legislation might amend the public records law and how the state deals with most apt comparison, dashcam videos.
You can find that here. There’s also an executive summary, which might be useful for your purposes.
Unfortunately, I don’t think we’ve received the participation we were hoping for in terms of updating the various states’ proposals and laws, so some of this might already be out of date. I still think it’s a good, comprehensive resource, though.
2. The Reporters Committee for Freedom of the Press has been compiling policies from around the country. These might or might not include enacted laws or regulations; some could literally just be department policy. You can find that here.
In addition to those comparative surveys, another resource you might want to look at when formulating a response to a proposed exemption involving body camera footage is a White Paper-published Media Freedom and Information Access Clinic at Yale Law School. This makes the case for treating body camera footage just like any other record under FOIA laws.
With regard to your question about responding to overly broad, gigantic requests, are you referring to just requests for body cameras or requests for records in general?
It seems like you’re asking the latter, though the answer to each is probably the same, unless the public-records law or proposed legislation specifically has a provision addressing the reasonableness of a request for body camera video, which was actually the case with D.C.’s proposed legislation. The final legislative proposal relating to body cameras would have required that a request for body camera video “identify with specificity the location, date and approximate time of the incident or event that may have been recorded.” Our coalition and others pushed back against this because the D.C. FOIA already requires that a request identify the records sought with particularity. Most state and local laws have that type of requirement built in somewhere, probably in terms of defining a “request” for all records.
If such a general requirement exists, then there should be no reason for a proposed law or department policy to contain a similar (or more onerous provision). A recent example out of New York shows why.
My take on that is actually that this was pretty broad request from NY1 (5 weeks of video). It’s hard to justify that as something which a police department could easily fulfill; a narrower request was likely to have more success. However, I also think the city’s response that it would take an extra 60 percent in hours to redact (after a 1-to-1 in terms of hours to review footage) is also excessive (then again, that's what we hear from the D.C. MPD, as well).
I hope that helps, especially just in terms of focusing your research. Please let me know if you have any other questions.