Police Body Cameras and Public Records Requests: Another Privacy Frontier

Police departments around the country have been rolling out body-worn camera (“BWC”) programs among other efforts to address accountability and transparency concerns in police conduct. Police departments, legislatures, and community groups alike believe that BWC programs will provide benefits in many forms, including lowering the incidence of police violence, reducing civilian complaints against officers, and streamlining internal police investigations. Public opinion polls overwhelmingly support their use, and news outlets have been eager to report early successes.

These programs are not without their challenges, however, as implementing BWC programs has sparked a multitude of legal and policy debates. Chief among these is over what happens to the video footage after it has been recorded: who gets to see it and whether it will be redacted are just some of the issues with which many departments are now grappling.

The question of whether (and in what form) the public will have access to BWC footage threatens the central goals of transparency and accountability for which these programs were designed. While denying public requests for BWC footage raises obvious transparency concerns; the privacy of victims and other individuals appearing in the footage must be respected. As state legislatures and law enforcement agencies outline policies on this point, they should keep in mind the ultimate purpose of BWC programs. A poorly crafted public access policy might make BWCs lead to less accountability and transparency than intended.

The Problem of Public Access

Whether private citizens can access BWC footage via Freedom of Information Act (FOIA) records requests, is a question the states and police departments must answer as BWC programs are rolled out. Requests for public records in particular are governed by each state’s public disclosure or FOIA laws, but most of these laws were written well before BWCs (and their attendant privacy implications) existed. Should footage of a medical emergency, or inside a private residence, or containing evidence in a current investigation, or of a sexual abuse victim be publicly available to any private citizen that files a records request?

It is inevitable that with each change to BWC policy affecting “when” and “where” an officer is required to activate his or her BWC, there must be a separate adjustment to the public disclosure policy. For example, if police were prohibited from activating BWCs inside a private residence, the privacy concerns from public disclosure of BWC would be substantially altered. Many states have responded to this problem by proposing or passing legislation that would exempt or limit at least some BWC footage from public disclosure coverage.

A Patchwork of Policies

At least 12 states have passed legislation that restricts public access to BWC footage. Some laws now restrict any public disclosure of footage unless it is used as evidence in a criminal investigation.[1] Others have exempted any BWC footage that was recorded on private property.[2] Some have simply stated that disclosure of footage will proceed along existing public records/FOIA request law.[3] In some cases, police departments are developing policies that might not even comport with a state statute.[4] Many more will decide on similar issues in the next year, including both California and Washington.

In 2014 in Seattle, a freedom of information advocate requested all of the BWC footage recorded in a pilot BWC program. Logistically unable to handle the request (redacting identities to comply with department policy and processing the video is a slow and expensive task) the Seattle Police Department hosted a “hackathon” to develop new technology better able to quickly redact identities and release footage to the public. The police department ultimately posted the redacted videos to a public YouTube channel. Many believe that cost-effective redaction of videos prior to their public disclosure is the best way to allay privacy concerns, including those addressed by the state legislation discussed above.

Is Redaction the Answer?

Redaction of individuals’ identifying information in BWC footage appears to be a win-win solution that can appease freedom of information advocates while limiting the concerns of civil liberties and privacy advocates. In its BWC policy recommendations, the American Civil Liberties Union recommends redaction “when feasible”. They suggest that redaction of identifying information and consent of those in the video is the best way to approach public release of BWC footage.

In response, police departments, especially those with large pilot programs, have argued that redaction is rarely feasible because complying with records requests while redacting personal information is overly costly and burdensome. Various stories revealing the high cost of obtaining footage have resulted from this technological reality, and critics of public disclosure of BWC footage no doubt count this among reasons to exempt the footage from FOIA requests.

Luckily, the impediments that video and redaction processing create are a bottleneck and not a roadblock. The increase in BWC programs has dramatically increased the demand for redaction software. Accordingly, substantial developments in redaction technology, including automated technology that can quickly recognize and blur faces and other identifying information, are rapidly coming to market. Improved redaction software will reduce the technological, time, and cost burdens that FOIA requests for BWC footage can create. As protecting privacy during the release of footage to the public becomes more efficient, all interested parties’ concerns can be addressed: police officers can ensure that non-essential footage is redacted;[5] victims, informants, and other individuals can protect their identities; and the public can put faith in the transparency and accountability that the taxpayer-funded BWC program has brought to their local police force.

A Way Forward

As BWC programs continue to roll out across the country, with more cameras and more footage being recorded, the problem of FOIA requests overtaxing police departments’ resources will only worsen. But public access to BWC footage is a critical component to the very success of the programs: if footage that the public knows exists can easily be exempted from public view at police discretion, the fundamental benefits of trust, objectivity, transparency, and accountability are threatened. The specific issue of whether the public has a right to access any recorded footage involves significant privacy concerns, but, as the ACLU recognizes, these concerns can be addressed by redacting personal and identifying information. As state legislatures and departments around the country draft legislation and BWC policy, they should take note that technological advancements in the coming years will give departments the ability to efficiently address privacy concerns while complying with FOIA requests that maximize transparency under the new BWC programs.

[1] See, e.g., Tex. Occ. Code § 1701.661(c)-(d) (allowing disclosure only if requested footage is evidence in a criminal investigation).

[2] See, e.g., N.D. Cent. Code § 44-04-18.7(9) (prohibiting disclosure of footage recorded “in a private place”).

[3] See, e.g., Va. Code. Ann. § 2.2-3706(A)(1)-(2) (stating the disclosure pursuant to Virginia’s Freedom of Information Act, with exemptions allowed for footage involved in ongoing investigations).

[4] Martin Kaste, Piecing Together America’s Patchwork Quilt of Body Cam Laws, NPR.org: All Tech Considered, (Feb. 25, 2016), http://www.npr.org/sections/alltechconsidered/2016/02/25/467990199/piecing-together-the-countrys-patchwork-quilt-of-body-cam-laws.

[5] Id. In nearly every state, non incident-related footage would be considered a police/personnel record, and would be exempted from FOIA requests regardless.

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