By Val Van Brocklin
According to the Reporters Committee for Freedom of the Press, “many police departments are adopting bodycams before creating policies or procedures for compliance with open records laws.”
The Federal Freedom of Information Act (FOIA) broadly exempts from disclosure “records or information compiled for law enforcement purposes” if their production:
- Could reasonably be expected to interfere with enforcement proceedings
- Would deprive a person of a right to a fair trial or an impartial adjudication
- Could reasonably be expected to constitute an unwarranted invasion of privacy
- Could reasonably be expected to disclose the identity of a confidential source which furnished information on a confidential basis
- Would disclose techniques for law enforcement investigations or prosecutions that could reasonably be expected to risk circumvention of the law
- Could reasonably be expected to endanger the life or physical safety of anyone
An agency must demonstrate that disclosure “would” cause harm in only 2 and 5 — Congress lessened the standard to “could” in the other subsections.
State and local public records and FOIA requests vary. Thank the Reporters Committee for Freedom of the Press for an interactive, online map charting the body camera policies of more than 100 police departments and laws in nearly every state regarding public access to police body camera videos.
The resources needed to address not just production but storage, retention, review, retrieval, and redaction under public records laws can be huge. Take a department with 25 officers running body cameras 32 out of every 40 hours, 46 weeks a year. That’s 36,800 hours of video potentially subject to public records disclosure requests. There’s also the discovery obligations owed to criminal defendants. Do we really want to be addressing these legal requirements after the cameras are rolling?
One solution may be to modify the public records and FOIA legislation that was enacted without body cameras in mind — before saddling officers and agencies with the devices.
This segment appeared in a fuller bodycams legal checklist article on Policeone.com.
Next: Bodycam programs ending due to video data storage costs
