D.C. mayor upholds denial of second request for police body camera videos

Adam Marshall | Freedom of Information | Commentary | April 28, 2015

Washington D.C.’s Mayor Bowser has largely upheld the refusal of the D.C. Metropolitan Police Department (MPD) to produce body camera videos in response to a D.C. Freedom of Information Act request submitted by the Reporters Committee.

In its D.C. FOIA request, the Reporters Committee asked the police department for specific categories of body camera videos, including videos that have been used for training purposes, flagged for supervisory review, submitted to the D.C. Office of Police Complaints, or used in connection with criminal and civil proceedings.

The department responded to the request by denying access to all body camera videos. It cited several exemptions to justify the withholding of certain information within the bodycam videos, and stated that because it has “not yet been able to obtain the necessary resources to perform the necessary redactions,” none of the video could be released.

The D.C. FOIA, like most open government laws, requires agencies to segregate exempt records from non-exempt records, and release the latter in response to a request.

After the denial, the Reporters Committee filed an administrative appeal with Mayor Bowser, asking her to reverse the MPD’s decision to withhold the records. In that appeal, the Reporters Committee pointed out that not only does the MPD have redacted body camera videos publicly available on its YouTube channel—a fact that demonstrates that it has the capability to redact videos—but also that it has redacted scores of videos over the years to protect the privacy of individuals.

In her recent state of the District address, Mayor Bowser said that “accountability is embedded, and will be embedded in everything this administration does.” Yet her proposed 2016 budget simultaneously calls for an additional $5,063,702 to expand the MPD’s use of body cameras and amending the DC FOIA to completely exclude public access to the videos.

A D.C. Council hearing on the Mayor’s proposed FOIA exemption for police body cam videos is scheduled for May 7, 2015.

This is the second D.C. FOIA request made by the Reporters Committee for access to police body cam videos. An earlier request, made during the early stages of the MPD’s pilot body cam program, was also denied by the department, and upheld by former Mayor Vincent Gray.

The MPD’s response to the Reporters Committee’s second appeal states that it has purchased video editing software and provided training to a number of employees on its use. The department maintains, however, that these “internal resources are not sufficient to make the necessary redactions to the responsive videos.” According to the MPD, the redacted body cam videos appearing on its YouTube channel were redacted by a vendor. The MPD goes on to claim that it has not yet “identified a vendor or the optimum software to handle redactions in a manner required to protect the privacy of persons captured by BWC [body-worn camera] videos.”

In upholding the MPD’s refusal to provide access to any body cam video, the Mayor’s office stated that there was an “absence of sufficient evidence to rebut MPD’s claim that it lacks the capacity to redact BWC recordings.” The Mayor’s decision did not address the other videos that MPD has redacted and publicly disseminated since at least November 2011.

Among other things, the Mayor’s office also upheld the MPD’s refusal to turn over body camera training videos. Police officials argued that that the videos are part of an employee’s personnel file, which is “not open to public inspection.” In its appeal, the Reporters Committee argued that such training videos are required to be disclosed by law, as they constitute “[a]dministrative staff manuals and instructions to staff that affect a member of the public . . . .” The Mayor’s office agreed with the MPD that officers have privacy interests implicated by the release of the training videos, and that “due to the MPD’s inability to redact BWC recordings, a valid exemption allows the records to be withheld entirely.”

Police Chief Cathy Lanier has previously stated that use of bodycams would, among other things, “make [the] department more transparent” and “establish a record of police conduct.”

With regard to the Reporters Committee’s request for body cam videos that have been used in court, or in connection with any civil or criminal proceeding, the MPD stated that “federal and local prosecutors have independent access to the BWC recordings,” and that the MPD “does not know or have any control over what is offered as evidence in court proceedings.”

The Mayor’s office recognized that this response did not answer the argument in the Reporters Committee’s appeal, namely that it also requested any body cam video that has been used in connection with a civil or criminal proceeding, which includes video that the MPD has turned over to prosecutors. The Mayor’s decision states that it is “unclear from the MPD’s statement whether it has provided federal and local prosecutors with recordings, regardless of whether these recordings were later used in legal proceedings.” It has asked the MPD to provide a clarification as to whether it has given any body camera recordings to local or federal prosecutors.

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