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Bodycams: seeing, but not being seen

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  1. Freedom of Information
Police departments across the nation are implementing body-worn cameras (also called BWCs, or bodycams) in an effort to improve community…

Police departments across the nation are implementing body-worn cameras (also called BWCs, or bodycams) in an effort to improve community relations and create a more objective record of officers’ activities. As recent news events have proved, these videos can provide crucial information about what transpired in a situation. Gaining access to bodycam videos, however, is proving to be a challenging endeavor for journalists.

Bodycam videos are, at least presumptively, public records subject to disclosure under most states’ open records laws. The definition of what constitutes a public record is incredibly broad in most states. For example, Colorado defines public records to include all “documentary materials, regardless of physical form or characteristics” that are made, maintained, or kept by state or local agencies.

BWC videos are created as part of the official operations of police departments, are under their control, and relate to the public’s business. As such, there should be little argument that public records laws apply. But whether those laws result in release of the videos in practice is another question.

Some police departments are handling requests for videos much as they would any other public record. Jack Gillum, a reporter with the Associated Press, submitted a public records request to an Arizona police department for video of an incident and received a CD in the mail shortly thereafter. He was charged $5, which included postage.

But other police departments are adopting bodycams before creating policies or procedures for compliance with open records laws, leading to erratic disclosure between jurisdictions and cases.

In Denver, Brian Maass, a reporter with a local CBS station, has had some success in requesting bodycam videos under Colorado’s open records law. Recently, a local police officer was suspended after using excessive force during an arrest — an incident that was captured on a fellow officer’s BWC. Maass was able to obtain the video, which was of incredible value to the public because it contradicted the suspended officer’s statements and showed precisely why he was suspended.

But in other instances, Maass hasn’t been so successful. Different requests for BWC videos to the Denver Police Department have been denied. He says that release of the videos is inconsistent, and when they are released, it’s in cases where they were part of an internal affairs proceeding that has been completed. According to Maass, that’s “the only time I have been able to successfully obtain these videos.”

The technology behind redacting videos

Even when a police department releases video, they may want to redact certain portions of it in accordance with the provisions of the applicable public records law.

AP Photo/Jim Mone

A Duluth, Minn., police officer wears a body camera on the front of his uniform during a car stop.

Redacting exempt images from a video before it is released is possible, despite what some agencies might argue. There are several affordable video editing programs that can blur or pixilate faces and other information from whatever part of the video needs to be redacted. Some programs even have intelligent features that can automatically track faces, substantially reducing a department’s administrative burden.

Third-party vendors are also springing up to handle the demand for video editing services. One Florida-based company is already contracting with police departments in several states to redact videos for public records requests. In response to an inquiry by the Reporters Committee, the company estimates that it can redact an hour of video in less than 3.75 hours. That timeframe largely mirrors the conclusions of a report issued by a City of Baltimore working group tasked with researching body cameras.

The Seattle Police Department has taken a different approach to redactions. It proactively posts bodycam videos that are completely and heavily blurred and then invites the public to submit requests for specific segments. The department then employs more targeted redactions and releases the rest of the video.

Whether Seattle’s system is useful for journalists remains to be seen. The proactively posted videos have no sound and are blurred so much that they are difficult to analyze. And even when a reporter requests a specific segment to be released, it may take a long time for the police to comply. Eileen Sullivan, a reporter with the Associated Press, said that the Seattle PD estimated it would take up to seven weeks to comply with a request she made for bodycam videos. Such a delay means that while the videos might be valuable for long-term investigative reporting, journalists might not want to count on them for breaking news.

Exemptions to disclosure

Recent discussions over the implementation of body cameras have shown that privacy is a substantial concern. Civil liberties groups have noted that because the cameras go wherever the police do, it is quite possible that sensitive material will be recorded. Depending on the situation, this might include the identity of a sexual abuse victim, a young child, or simply the interior of a home.

Almost every state has a privacy exemption that would allow this type of information to be withheld. For example, the freedom of information law in Washington, D.C., allows an agency to withhold information “of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”

A bodycam video published by the Metropolitan Police Department in Washington, D.C., shows how this might work in practice. The video, which depicts a traffic stop, has certain elements pixelated or blurred, including the face of the person that was stopped, her identifying documents and license plate, and the officer’s computer screen. Certain segments of the audio are also muted.

A video released by the police in Flagstaff, Ariz., takes a slightly different approach. The video, which shows the last few minutes before an officer was shot and killed, includes a minute of footage inside a private residence. While that minute is blurred, the rest of the video, which takes place outside the home, is shown in its entirety.

In some situations, it is entirely possible that the public would want and need to see a bodycam video that would otherwise be exempt for privacy reasons. For example, an excessive use of force incident might take place inside a private home. Some states balance privacy exemptions with the public interest, which may allow these videos to be released. Research your state’s law to understand privacy concerns that may arise in bodycam videos and what you might do to encourage their release.

A second exemption that may apply to bodycam videos concerns investigatory records. Many state open records laws exempt records that are part of an ongoing police investigation, which could include video from bodycams. However, as with privacy exemptions, many states require a balancing test between the possible impairment of an investigation and the public interest. When making a request, be sure to include the best possible argument as to why the information needs to be available to the public.

Another common exemption police departments may assert when facing a request for BWC video relates to personnel files and/or disciplinary records. It is not uncommon for states to withhold certain types of information about employees, whether it relates to sensitive data (such as Social Security numbers and home addresses) or performance evaluations. Generally, however, these exemptions do not allow agencies to withhold records that indicate employee wrongdoing, which is important to note when requesting access to videos that may show police misconduct. In Oklahoma, bodycam videos that show law enforcement personnel under investigation may be temporarily redacted to obscure their identity, unless the investigation lasts for an unreasonable amount of time.

Charging fees for videos

As with traditional public records, agencies may charge high fees for processing requests, creating a barrier to disclosure. Many state laws allow for the requester to be charged for the time it takes to locate, review, and produce records, which can add up quickly when it comes to BWC videos. In Florida, for example, one town issued a bill for $18,000 in response to a request for 84 hours of video.

The city of Chesapeake, Va., not only denies most requests for BWC video, but also appears to be issuing bills to anyone who asks. They charge for the time it takes them to respond, regardless of whether the video exists or is disclosed. The city has billed requesters over $2,000 in the last 15 months.

Journalists requesting videos can try to avoid these costs by researching agencies’ practices ahead of time, requesting as little video as needed, and requesting a fee waiver.

New state legislation on bodycams and public records laws

Although it would seem that most existing open records laws adequately balance privacy, law enforcement, and transparency, many state legislatures are considering new exemptions for bodycam videos, and some have already been enacted.

In North Dakota, a bill was recently signed by the governor that exempts all images “taken in a private place” from disclosure. Florida passed a similar law in late May that exempts videos taken inside private residences, healthcare facilities, and places “that a reasonable person would expect to be private.” Other states, including, Michigan and Texas, have introduced similar measures to deal with videos in private places.

Oklahoma passed a law in 2014 that requires police departments to release bodycam videos but to redact any portions that depict the death of a person, a dead body, any person who is nude, or minors under 16 years of age.

Other states are considering more drastic exemptions. Bills have been introduced in Louisiana, Massachusetts, New Hampshire, and Virginia that would completely exempt bodycam videos from public records laws. Some of these bills, along with those proposed in other states, would allow individuals who are captured by the cameras and other involved parties to request the videos.

The Reporters Committee has argued that most existing privacy exemptions are more than sufficient to address privacy concerns presented by public access to BWC footage, and no additional legislation is necessary.

Challenges and opportunities for cooperation

Aside from passed or pending legislation, some police departments are simply refusing to release any body camera videos. The Los Angeles Police Department, for example, has stated that it considers all such videos to be “evidence” and therefore completely exempt under the California Public Records Act.

In Washington, D.C., the Metropolitan Police Department has refused to release any body camera videos, claiming it cannot make the necessary redactions. The Reporters Committee has submitted several public record requests for various types of bodycam videos, and has been denied each time. Administrative appeals of those denials have been upheld by the mayor.

As the use of bodycams expands, journalists and news organizations should be aware of these issues and any legislation that might affect their ability to access these video records. But police departments, reporters, and the public can also work together to find creative solutions to the issues raised by these videos.

Despite the shortcomings of Seattle’s current approach, they have made an unparalleled effort to engage the community on these issues. The police department recently hosted a public “hackathon” to gather ideas on how to best redact video in order to comply with records requests. And since then they have been developing tools that will automatically redact videos, at least to some extent. In a blog post, the department said that they will freely share the resulting software with other police departments as it is refined.

Bringing communities together to work towards transparency is good for law enforcement, good for reporters, and good for the public – the ultimate intended beneficiary of this new technology.

This is part of a series of articles written for the Poynter Institute by Reporters Committee staff members, and first appeared on poynter.org on April 15.