Advocates push back against FOIA exemptions for bodycam footage

Kelly Swanson | Freedom of Information | News | June 9, 2015

As states begin to implement laws requiring police officers to wear body cameras, lawmakers now struggle with the question of who should be given access to the recordings. Many states have already proposed legislation that will withhold bodycam footage from the public. As outraged civil liberties activists try to prevent this legislation from passing, many are forcing state legislatures to consider bills that allow for a greater degree of public access.

In many states, citizens have the ability to request copies of footage from police worn body cameras through their state’s public record law. However, fear of privacy issues that this new technology may create is causing a rush to propose broad categorical FOIA exemptions of body camera footage, perpetuating the current barrier between many law enforcement officials and the public.

Although Kansas and Louisiana are among the only states where bills have been introduced that would completely exempt body camera footage from FOIA, legislation has been proposed in over twenty states that includes wording imposing broad restrictions that provide for almost no public access.

According to research done by the Reporters Committee for Freedom of the Press, of the 26 states that have either introduced or passed a law addressing the question of whether or not the footage should be public record, 21 states have proposed regulations that require additional restrictions, which hamper public access in varying levels of exclusion.

These restrictions range from “private place” restrictions, to restrictions on footage taken in health care facilities, to full exemptions unless the individual requesting the recording is the subject of the footage.

For example, in North Dakota, according to House Bill 1264 which was passed in April, any footage taken from a body camera worn by a law enforcement officer taken in a “private place” would be exempt from the public record. No definition of what constitutes a “private place” is included in the bill, opening the door for a broad restrictive interpretation by law enforcement officials.

However, following the fatal shootings of unarmed black men in Ferguson, Mo., North Charleston, S.C., and Cleveland, Ohio, among others, civil liberties proponents are refusing to let the potential for transparency slip through their fingers. Public access to police footage, they point out, strengthens the relationship between the police and the community, can show who is at fault in an incident, and helps monitor the effectiveness of body camera programs (for which millions of tax dollars will be spent).

Journalism organizations in Washington, D.C. (including the Reporters Committee) are fighting D.C. Mayor Muriel E. Bowser’s efforts to exempt videos from the D.C. FOIA, a proposal included in her proposed Budget Support Act of 2015.

Kevin Goldberg, President of the D.C. Open Government Coalition, says that his organization has been extremely involved in the pushback effort. He cites meetings with D.C. Council Member Kenyan R. McDuffie, a letter the coalition wrote opposing the inclusion of a full exemption in the Budget Support Act, and testimony at the Judicial Committee’s round table session discussion of the usage of body cameras held on May 7.

The resistance effort has not been without signs of success. The D.C. budget, which was passed on May 27, 2015, included provisions creating an advisory group, which includes representatives from the Reporters Committee and the D.C. Open Government Coalition, among others. This means that these organizations will have a role in approving whatever policy the Mayor creates regarding police worn body-cameras.

A similar struggle is going on in Florida, where activists have been fighting to reduce both the records fees that can be chraged to fulfill a FOIA request, as well as the restrictiveness of laws exempting of body-camera footage from public record.

In March, Florida ACLU Vice President Michael Barfield sued the City of Sarasota and Police Chief Bernadette DiPino after police officials charged him $18,000 for his request for the 84 hours recorded for the test program of police body-cameras.

Barfield said that he requested the footage out of concern after Sarasota police seemed to have done nothing to examine the effectiveness of the police worn body camera program.

“I asked them what they learned from the program and I was curious because no one had bothered to review the data. There was no report, which is what I was told they would do,” Barfield said.

Barfield requested the footage to try and examine it himself, which prompted the Sarasota Police Department to send him the $18,000 bill. The case later settled out of court, with the city paying his attorney’s fees. However, Barfield said that the review and revision of the policies on how much can be charged for a record was the biggest achievement of the case.

However, since Barfield's case, the law on what type of content can be requested by the public for body-camera footage has changed, with the passage of Florida Senate Bill 248 on May 22.

Florida Senate Bill 248 includes restrictions that make body-camera footage confidential if it is recorded within the interior of a private residence, within the interior of a facility that offers health care, mental health care, or social services or in a place that a reasonable person would expect to be private.

“I think it’s overbroad. I understand the categories inside a hospital, and even inside of a home, but the ‘general expectation of privacy’ is a catch-all exemption that is undefined,” Barfield said of the bill.

Although Barfield thinks the bill is overly exclusionary, he believes that without the work of The First Amendment Foundation and the ACLU of Florida, the Florida legislature could have made body-camera footage completely exempt from FOIA.

“I do think that we were successful in some ways because the original bill was completely horrible compared to what we ended up with, in terms of public access,” said Barfield.

Back in D.C. where the accessibility law has not yet passed, Goldberg says he hopes that a full exemption will not be approved because of the negative effect it will have on transparency.

“Once this type of exemption carve-out happens, it doesn’t allow a lot of discretion, leeway, or balancing with regards to the public interest. If the exemption simply reads, as it is currently proposed, that these [footage from bodycams] shall not be available through FOIA, it will be very difficult to challenge that in court,” said Goldberg.

Barfield added, “Body cams I think can be a win-win situation for both the officer and the citizen but it defeats the entire purpose of accountability if we are not going to have transparency in terms of getting access to this footage.”

Bowser has until October 1, 2015 to submit her proposal to the advisory group regarding the accessibility rule for body camera footage.

Below are links to the bills that have been proposed/passed in various states:

Arizona: SB-1300 (Signed into law 4/1/15)

California: AB-66 (Dead as of 6/4/15) AB-1246

Connecticut: SB-673

District of Columbia: B21-0158

Florida: SB-248 (Signed into law 5/21/15)

Georgia: HB-32 SB-177

Indiana: HB-1225 SB-454

Iowa: HF-452 HF-459

Kansas: SB-18

Louisiana: HB-183

Massachusetts: HB-2170

Michigan: HB-4234

Minnesota: HF-999

Missouri: HB-762

Nevada: SB-111

New Hampshire: HB-617

New Jersey: NJ Judge ruled footage is open record

North Carolina: HB-713

North Dakota: HB-1264 (Signed into law 4/15/15)

Ohio: 12th district court of appeals ruled recordings are not public record

Oklahoma: HB-1037 (Signed into law 6/4/15)

Oregon: HB-2571

South Carolina: SB 47

Texas: SB-158

Utah: HB-386

Virginia: HB-1534

Washington: HB-1917