A year ago Adam Marshall submitted the first-ever records request for body camera video to Washington, D.C.’s Metropolitan Police Department. It was in the wake of violence in Ferguson, Missouri, but before the shooting death by police of 12-year-old Tamir Rice in Cleveland, and months before Freddie Gray died of spinal injuries in Baltimore police custody.
“I’m still waiting on the results of that request,” said Marshall, an attorney for Reporters Committee for Freedom of the Press, speaking at the Ohio Law and Media Conference in Columbus last month.
Accessing footage of body-worn cameras — the latest technological bandage applied to the complex issue of hemorrhaging race relations in America — poses particular headaches for journalists.
Body-worn cameras, which are supposed to ensure police transparency, are becoming so commonplace that police uniforms now are being designed to accommodate them. As states and municipalities rush to equip officers with the devices, legislatures have introduced a cadre of laws restricting access to them.
At least 12 states have passed laws regarding access to police body-cam video; 20 more have legislation pending. In states where laws haven’t passed, municipalities are taking the lead and enacting their own. (See an interactive map compiled by Reporters Committee for Freedom of the Press.)
“Almost every one of these bills seems to restrict access to body-cam video in some way that is more restrictive than existing public record laws,” Marshall said.
Among the most stringent: South Carolina’s public records amendment, passed in June, which states that data recorded by body-worn cameras is not a public record. A proposed Louisiana law also exempts audio and video data from disclosure requirements in the state’s public records law.
After it became apparent that his Freedom of Information Act request was not forthcoming, Marshall and his committee began monitoring state and local legislation regarding release of police body-cam video.
“What we quickly realized is there is a disconnect between the existing law, between department policies and between the practices of those same law-enforcement agencies,” he said.
In Washington, D.C., for example, police department policy is to release the footage. The practice, however, is that none has been released. Last month Washington mayor Muriel Bowser submitted legislation that gives police broad latitude in denying public records requests for video, including footage of any assault, not just those involving an officer.
Most new legislation includes privacy safeguards, making video confidential if it’s taken inside a private home, healthcare or social services facility. The American Civil Liberties Union of Michigan helped seek such restrictions in that state.
“(Body cams) must be deployed so they protect the public without becoming a tool for routine surveillance of citizens,” Shelli Weisberg, legislative liaison for the ACLU of Michigan, told the Detroit Free Press.
Those same safeguards are needed, some say, to protect fair-trial rights.
“This is not just about seeing Aunt Sally in her nightie,” said Jeffrey Clark of the Ohio Attorney General’s office. “(It’s about) the titles of books on somebody’s bookshelf, a well-stocked wet bar, political magazines, lingerie catalogs . . . .
“Even the plain view doctrine (which allows officers to seize evidence without a warrant) says that something must be immediately apparent to the officer in order to qualify for that exception to the Fourth Amendment. Here, you can really imagine somebody going frame by frame in a time-resolution video and reading what’s on the bookshelf, and maybe even a document that’s on the table in full text.”
Yet many open records advocates worry that such exemptions are overly broad. What if an officer opens fire on an unarmed person in their home? What if a homeowner attacks an officer?
“They (police departments) should know and you should know: Agency policies don’t trump the public records act,” said Columbus Dispatch statehouse reporter Jim Siegel, also at the law and media conference.
“If we just follow the current records law, it will take care of a lot of the issues involving access to body-cam video,” he said. “(Ohio) courts have ruled that incident records are open and that should include dash-cam and body-cam video. There’s no expectation of privacy in public places. Recording should be regarded open if it involves detention of a subject. It should be regarded as open if there are any concerns of misuse of force.”
Redaction and ongoing investigations
Many police departments initially declined records requests for video after saying it was too difficult to redact — or make unidentifiable — the faces of rape victims, minors or witnesses. Now new and cheaper redaction tools (including software made by body-cam manufacturer Taser) can track and pixelate images throughout a video. Such software should ease the workload for department employees and make the video more accessible.
A bigger impediment to journalists, said Clark, might be retention schedules that determine how long certain types of video will be stored, and whether the video is considered investigatory work product — information gathered in the course of investigating an actual or probable crime.
“My office, when we advise the highway patrol and other state-level law enforcement agencies . . . (we) believe that when a camera is used to record the process of an officer investigating, whether it’s an investigative stop of an OVI or an interview with a suspect or witness, that those are not incident reports,” Clark said.
When a University of Cincinnati police officer shot and killed Sam DuBose during a traffic stop in July, local and national media filed public records requests for the officer’s body-cam video. The prosecutor withheld the footage, citing exemptions for an ongoing police investigation and the officer’s right to a fair trial.
The Cincinnati Enquirer, Associated Press and several TV stations sued, saying the prosecutor had no valid excuse for failing to comply with the state’s open-records law. The video was released five days later when a grand jury handed down its indictment against the officer.
Legal experts believe the issue likely will be resolved in court. That might hurt the advancement of open records law, as well as the notion that police are being transparent.
“‘Leaving it to the courts to sort out likely will narrow media access to an unacceptable level,” wrote the Ohio Newspaper Association, which has met with Ohio legislators in an effort to shape the state’s body-camera legislation. “As media outlets and other groups navigate the courts, they also should anticipate legislation.”
In the meantime, journalists and media organizations are gearing up for the same tug-of-war they had several years ago when law-enforcement agencies withheld dash-cam videos.
“This will be yet another public record for us to fight about,” Siegel said.