AP Photo provided by City of Forney Police Department
Under Vermont’s public records law, this dispute should be easy to resolve: recordings made by police cruiser dashboard cameras, like the one that was rolling the night of Higbee’s arrest, are presumed to be public records. Yet, when the Burlington Free Press requested a copy of the video, the authorities told them they couldn’t have it because the Vermont Public Records Act exempts criminal investigation records that would impair someone’s right to a fair trial.
Veteran Free Press reporter Mike Donoghue eventually received the video directly from McArthur, not the police.
But Donoghue certainly won’t be the last journalist to clash with law enforcement officials over the public’s right to access “dash-cam” recordings.
From statutory exemptions to administrative delays and three-figure processing fees, frustrated dash-cam video requesters have constantly met with roadblocks. And while some states are moving toward greater dash-cam transparency, it is too early to tell whether others will follow.
AP Photo by Jeff Baenen
According to Jay Zager, a former Florida police officer now working as a defense expert witness in drunk driving cases around the country, there is “no continuity throughout the U.S.” on the right to view dash-cam videos.
Open government advocates are working in state legislatures and courts to make it harder for police departments to withhold dash-cam videos. But they are encountering resistance, as some argue that the media’s ability to use police recordings must be kept in check.
Suing for videos
When police departments refuse to turn over dash-cam videos and administrative appeals prove fruitless, journalists and other requesters face a choice: abandon the public records request, or take the matter to a court.
KOMO-TV, an ABC affiliate station in Seattle, has opted to pursue its video request as high as the Washington Supreme Court. After the case bypassed the appellate court and went straight from the trial level to the state’s highest court, journalists are waiting for the final word on whether the Seattle Police Department must hand over a series of videos.
Seattle’s police force has been widely accused of using excessive force and conducting racial profiling. A U.S. Department of Justice 2011 report found that the police department engaged in a “pattern or practice of constitutional violations regarding the use of force that result from structural problems, as well as serious concerns about biased policing,” based partly on evidence gleaned from dash-cam videos.
The history of bad law enforcement in Seattle makes it all the more important for dash-cam videos to be treated as open records, said Judith Endejan, a lawyer for KOMO.
“As incident after incident came forward, it was clear that seeing these dash-cam videos was really an important tool for reporters and the public to see what SPD is up to,” she said.
At the trial court, Judge Jim Rogers ruled that the police department violated the public-records law by failing to give KOMO a list of videos, but accepted the department’s broad interpretation of a state statute that prohibits releasing certain police recordings “until final disposition of any criminal or civil litigation which arises from the event or events which were recorded.” The police department argued that under this law, it can withhold its videos — even the ones with no connection to a pending lawsuit — until a three-year statute of limitations has expired.
Endejan said this ruling posed a “Catch-22,” because the department’s stated policy at the time of the station’s request was to destroy its videos three years after filming. The department’s lawyer told the Supreme Court at oral argument that the video retention period has been extended, but Endejan said the policy is still unclear.
While Washington journalists cross their fingers for a favorable ruling on Seattle police recordings, open government advocates in Oklahoma are applauding a May court decision that expands access to dash-cam videos.
In Ward & Lee PLC v. City of Claremore, the Oklahoma Court of Civil Appeals overturned a lower court’s ruling and held that dash-cam video documenting Richard Stangland’s arrest for alleged D.U.I. “constitutes a public record subject to inspection under the Open Records Act.”
“Appellees’ argument — and the trial court’s holding — that the video is exempt because it could be used as evidence in a subsequent criminal prosecution is without legal support,” Judge Robert D. Bell wrote in an opinion released May 31. “There is no such exemption enumerated in the Act.”
Bell is not the first judge to rule that dash-cam videos must be released. In 2010, for example, Utah District Judge Denise Lindberg ordered a state agency to release the recording of former Utah Senate Majority Leader Sheldon Killpack being arrested on suspicion of drunk driving. The Department of Public Safety argued that releasing the video to the media would endanger Killpack’s right to a fair trial, but the judge rejected that reasoning.
The Oklahoma case, unlike its predecessor in Utah, did not originate with public-records requests by reporters. Josh Lee, a lawyer for Stangland, requested the dash-cam video as part of his client’s defense. But Lee said that the ruling set a good precedent for the media and the public as well as criminal defendants.
Yet, he added, there is a danger that the ruling could come under legislative attack.
“My fear, quite frankly, is that the district attorney’s offices are all going to get together and go lobby the state legislature to get a change and exempt dash cameras from being accessible through open records,” he said. “I think that that’s not if, but when.”
Legislation goes both ways
Legislative backlash to dash-cam transparency is not unheard of. It happened in Florida in 2011, after journalists requested a video of two Tampa police officers slain on duty.
“Even though the family objected to the release of that video, there was no statutory exemption, and the judge essentially said his hands were tied,” said Patricia Gleason, special counsel for open government to the Florida Attorney General.
The judge allowed reporters to view the video in a screening at the State Attorney’s Office.
According to Gleason, the Florida legislature responded by amending the open records law to make videos and other recordings confidential if they show the killing of a person.
In an open letter, Wakulla County Sheriff David Harvey thanked state lawmakers for their “efforts to eliminate this unnecessary part of the Florida Public Records.”
“We recently investigated a double homicide in the county where one of the stabbing victims made a 911 call to my office seeking assistance. The media has requested a copy of this gruesome recording without really realizing what is contained on the recordings,” he wrote. “I feel like making the recordings public to our local television stations would have a devastating effect on the family members who survive the two men who died that early morning.”
A majority in the Florida legislature agreed that privacy should trump transparency in cases where the recording shows the end of a life. Yet, legislative action on dash cams does not always mean less transparency. Vermont, for example, amended its public records law in May to narrow the exemption for criminal investigation records.
The legislative change came in response to the Vermont Supreme Court’s 2012 decision in Galloway v. Town of Hartford, a modest victory for open government advocates. Seeking access to records about Wayne Burwell, a black man who was violently taken from his house by the police, investigative journalist Anne Galloway argued that the Vermont high court should read the Public Records Act the way federal courts have read the federal Freedom of Information Act, allowing the authorities to withhold criminal investigation records only if they can show that a specific harm would result from disclosure.
Instead, the court issued a narrower decision in favor of Galloway, founder of VTDigger.org, rejecting the town’s argument that Burwell was not technically arrested and ruling that the requested records were public because they reflected “the initial arrest of a person.” As for the question of whether to adopt the federal standard for access to investigation records, Justice Marilyn Skoglund wrote, “We leave that issue to the Legislature.”
The legislature, in turn, amended the Public Records Act to enumerate the specific circumstances where investigation records are not public, and explicitly directed the state courts to follow federal Freedom of Information Act case law in interpreting the provision.
Donoghue said that compared to the new investigative-records exemption, the old one was broad and ambiguously worded.
Now, he said, “at least there’s some chance to get a criminal case file at some point, depending on what you’re requesting and when you’re requesting it.”
Wrangling over dash-cam requests
While legislatures and courts tinker with the legal basis for dash-cam transparency, journalists and other members of the public continue to face frequent difficulties in requesting videos.
Some police departments have shown that they are willing to cooperate with journalists’ requests for recordings. In Arkansas, for example, the Jonesboro Police Department granted requests by media organizations including The Associated Press for dash-cam video from the night last summer when 21-year-old Chavis Carter was found dead in a police car. Although the video did not clarify whether the suspect shot himself, the pro-transparency blog “The Art of Access” praised the release as an example of a public records law “working just as it should.”
But not every dash-cam video request ends the way reporters hope it will. For instance, local officials in Las Cruces, N.M., declined to let journalists access footage of the Dec. 17, 2011 police shooting that left alleged gang member Robert Montes dead. City Clerk Esther Martinez wrote in a denial letter that any recordings of the incident would be “confidential law enforcement records” and therefore exempt from disclosure, according to the Albuquerque Journal.
Lawyers, like journalists, say they often encounter resistance to their requests for dash-cam recordings.
“Even despite freedom of the press and First Amendment issues, we are really seeing some resistance by the officers and from the agencies,” said Jeremy Brehmer, a California criminal defense attorney who has used dash-cam videos as evidence.
Some police departments don’t respond promptly to requests, while others ask requesters to pay over $100 per hour for an officer to retrieve videos, Brehmer said.
“It seems to be more resistant than other areas of the law, for some reason,” he added. “I think it’s kind of the code of the officers, that they kind of want to look out for themselves.”
But Zager, the retired Florida police officer, said he believes that the public should have access to dash-cam videos, with a few exceptions. Footage showing juveniles and identifying victims of sex crimes should be exempt, and videos involved in criminal investigations should be withheld until the investigation is over, he said.
“You don’t want a videotape released when an investigation is ongoing, because somebody could gain access to it and spoil the investigation,” he added.
Donoghue said that some of the dash-cam videos he has obtained provide evidence to support the police officer’s side of the story. Such videos, he said, have led to some changes of heart in police departments.
“I have heard several chiefs through the years who were initially opposed to videos in cruisers,” he said. “They have become big fans of video in cruisers, because so many times it has led to police officers being exonerated of claims made by the general public.”
Of course, Lee said, police departments want the public to see dash-cam videos that reflect well on the officers. But when it comes to videos that might be useful to the accused, the police change their position, he said.
“They want to have total control over what they release, when they release it, and who they release it to,” he said.