Police body cams should be FOIAble

In the past year, several deadly interactions between police and unarmed civilians have prompted law enforcement agencies nationwide to equip patrol officers with body-worn video cameras. Police and lawmakers hope use of cameras will improve interactions between officers and civilians, assist investigations of crimes and officer misconduct, and improve public trust of law enforcement officers.

Use of body-worn cameras poses thorny questions for police departments and legislators at the state and local levels, including when cameras will be turned on, circumstances under which they may be turned off, how long to keep recordings, and the purposes for which BWC video may be used.

The issue of concern to the SPJ is whether, and to what extent, body-worn camera video will be accessible to the public. That question has evoked vastly different responses from officials across the country – ranging from release on YouTube of low-resolution versions of all recordings by the Seattle Police Department, to a blanket Freedom of Information Act exemption proposed by the mayor of Washington, D.C.

Officials who argue against public disclosure make three arguments: that encounters between police and civilians frequently are embarrassing or involve sensitive issues; that disclosure might make solving crimes more difficult; and that responding to requests for BWC video will take officers away from more important tasks and break department budgets.

SPJ understands that public disclosure of BWC video may implicate privacy rights of individuals with whom officers interact, particularly when encounters occur in private places. We understand that in some cases there will be valid investigatory reasons to keep BWC recordings secret, at least temporarily. We understand that disclosing BWC recordings under public records laws will require police to devote resources to review and redact some recordings.

If the goal is to improve public trust in the police, denying the public access is likely to accomplish the opposite. If the goal is to protect privacy or the integrity of criminal investigations, state and local open records laws already include effective exemptions. If the goal is to reduce the cost of FOIA compliance, we might as well give up any pretense of government transparency.

Exempting BWC videos from disclosure will foster distrust because an open records law exemption is not a prohibition against disclosure, it merely allows an agency to withhold records. It is safe to assume that if BWC recordings portray officers in a good light or counter allegations of misconduct, police will move quickly to review and release video to news outlets. If, in response to allegations of misconduct, police cite an exemption to withhold video, many in the community will assume the worst, that officers have something to hide. That perception may be reinforced by bystanders’ cellphone video or accounts given to reporters.

SPJ is not alone in believing that existing FOIA exemptions are up to the task, and that BWC secrecy will harm police-community relations. The Fraternal Order of Police and the D.C. Office of Police Complains, the agency charged with investigating complaints against officers, joined SPJ’s D.C. Professional Chapter in opposing the proposed FOIA exemption.

Opponents of disclosure argue that encounters between officers and civilians often occur in dwellings or other places where individual privacy is an over-riding concern. But many such encounters occur in public places, and even when officers interact with civilians in private places, for example while making arrests, disclosure of the video might not rise to the level of a “clearly unwarranted invasion of personal privacy.”

Finally, proponents of BWC secrecy argue that without an exemption police departments will be forced to respond to a large number of requests for voluminous BWC recordings. They fear that many requests will come from neighborhood busy bodies and voyeurs. There are two major flaws in that argument:

  • This is a new technology and no one can predict how many seconds, minutes or hours of recordings would have to be reviewed, much less redacted, in response to an individual request. Although BWCs are new, they are not unique. Police have used CCTV and dashboard cameras for a decade or more, and law enforcement agencies have not been overwhelmed by requests for those videos.
  • The cost of responding to public records requests is never a justification for exempting an entire category of records from disclosure. The moment lawmakers decide that the cost of compliance justifies creating an exemption from disclosure, will mark the first step down a very slippery slope toward government secrecy.

Because most law enforcement agencies are just beginning BWC use, any attempt to gauge the average number of requests they will receive or how much video they would have to review and possibly redact in an average month would be speculative. Most interactions between officers on patrol and civilians last several minutes, not hours, and requested BWC recordings likely would be short.[1]

The open records request process undoubtedly will deter neighborhood busy bodies and voyeurs. Consider that when you make a FOIA request you do not get responsive records immediately. Police often have 10 business days — two weeks — or more to respond, and may be able to justify additional time to review and redact BWC video. For news outlets working on daily stories, use of BWC recordings will be limited to instances in which police affirmatively choose to release video. Only if a story will develop over a considerable period of time — a major crime, the recent events in Baltimore following Freddie Gray’s death — will it be practical for a news outlet to request BWC recordings under the open records law.

Lawmakers should assume that a person who files a request has a significant interest in the police-civilian interaction at issue, because s/he is willing to wait weeks to get the video, and may have to file an administrative or judicial appeal if police deny the request. Giving police the ability to release video to suit their interests, but to invoke an FOIA exemption to deny the importance of a requester’s interest, sends a pretty clear and undesirable message — that the goal of the BWC program is to protect law enforcement agencies, not to build public trust.

[1] A study commissioned by Baltimore’s mayor estimates that the average police-civilian interaction last 13 minutes. Mayor Rawlings-Blake’s Working Group on the Use and Implementation of Body-Worn Cameras: Draft Recommendations February 18, 2015 (“Balto. Report”), 31. http://mayor.baltimorecity.gov/sites/default/files/20150218BWCWorkingGroupRecommendations.pdf. The report estimated that it would take 30 minutes and cost about $50 to review and redact 8 minutes of BWC video. Id.

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