October 10, 2016
In an effort to build trust between law enforcement members and the communities they serve in the wake of several controversial police shootings, recently the Department of Justice awarded $20 million to 100 police departments for the purchase of body cameras. With the increase in the use of police-worn body cameras comes the question of whether the public has a right to view any of the recordings made by these devices. Police don’t always make body cam footage public for a variety of reasons, ranging from protecting ongoing investigations to privacy concerns. In the recent Charlotte, North Carolina, police shooting of Keith Scott, the Police Chief initially refused to release body cam video, citing state law providing that records of criminal investigation are not public. (N.C.G.S.A. § 132-1.4 ). Additionally, a new North Carolina law, effective Oct. 1, 2016, more specifically provides that police recordings are not public records and may be disclosed only in limited circumstances. Despite that, after public protests, the Charlotte police agreed to release all video last week.
State laws on body camera data
As there is currently no federal policy governing the classification of such recording data, the determination of whether the data is public or private falls under state law. Although existing state data privacy laws generally govern the classification of data as private or public, several states, in addition to North Carolina as mentioned above, have recently passed legislation specifically addressing body camera recording data and its disclosure.
Some states that have recently passed laws restricting release of police body camera recording data include New Hampshire (N.H. Rev. Stat. § 105-D:2, effective Jan. 1, 2017), Minnesota (M.S.A. § 13.825, effective Aug. 1, 2016), Louisiana (LSA-R.S. 44:32, effective Aug. 1, 2016), South Carolina (SC ST § 23-1-240, effective June 10, 2015), Illinois (50 ILCS 706/10-20, effective July 28, 2016), and Washington (WA ST 42.56.240, effective June 9, 2016).
Despite these laws restricting public access, like in North Carolina, law enforcement agencies have been releasing video of police-involved shootings, mainly in response to public outcry for transparency.
Other government video recording data
In related news, the Minnesota Supreme Court recently held that video data from public buses was nonpublic “personnel data.” KSTP-TV v. Metro. Council, 884 N.W.2d 342 (Minn. 2016) The Court provided that although the video data was public when it was first recorded on hard drives on the buses, it became nonpublic personnel data once it was transferred from the hard drives to DVDs and maintained for personnel purposes. The dissent pointed out that the Minnesota Data Practices Act includes a presumption that government data are public and accessible by the public. M.S.A. § 13.01, subd. 3. The dissent complained that the “decision will be taken by some government entities as a free pass to conceal that which should be public” by “stash[ing] the data in an employee’s personnel file.” Though the data classification of body camera data is specifically covered under M.S.A. § 13.825, under this decision, a law enforcement agency could make the same argument that the Metropolitan Council made to claim that body camera recordings should be considered nonpublic if they have been maintained as personnel data.
As technology continues to evolve, there continues to be a need to balance the rights of the public to access with the rights of government.