Police-Worn Body Camera Footage: A Public Record? Part 1

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This post, written by Rachel Mattson, is part one in a two-part series regarding the debate regarding police body-camera footage’s classification as a public record. Part 2 is now available here.

Introduction
The murder of Michael Brown by police in Ferguson, Missouri, in August 2014 was, we now know, a turning point in the struggle for racial justice and police accountability in the U.S. Protests in the shooting’s aftermath garnered international news attention and extended the work of racial justice activists under the banner of the Black Lives Matter movement. The horror of Brown’s death and the power of the highly visible oppositional efforts in its aftermath put conversations about police procedure and accountability front and center nationally.

One of the chief reforms proposed in the wake of these events was implementation of police-worn body cameras. After Brown’s murder, officers in Ferguson began routinely using these devices, and in December 2014, President Obama officially requested $75 million in federal funds to support the distribution of 50,000 body cameras to police departments nationwide. Shortly thereafter, The Atlantic called the adoption of body-worn cameras by municipal police departments “may[be] the most significant reform to follow the fatal police shooting of Michael Brown.” The trend has continued: in March 2016, New York-based legal researcher Ian Head noted that “cameras are the biggest trend in police departments across the country.”[1]

But even as calls for use of police-worn body cameras grew, critics began to sound notes of caution. Privacy experts voiced concerns that “equipping police with such devices” might simply extend the government’s surveillance capacity: the Los Angeles Times reported that someday “such cameras…may be used with facial-recognition technology the way many departments already use license-plate scanners.” Others noted that ample evidence suggested that video documentation was not enough to ensure accountability or justice. New York Times Magazine contributor Jenna Wortham tweeted, “Eric Garner’s death WAS captured on video. We all saw it. Body cameras for cops won’t solve this problem. It’s bigger than technology.”[2] She refers to the Staten Island man who was choked to death by an NYPD officer in July 2014. A grand jury failed to indict the officer responsible.

Body-worn cameras (BWCs for short) began raising a range of legal and archival questions that municipalities and police departments were woefully underprepared to address. Should footage generated by police-worn body cameras be classified as a public record? When and how should access be granted to family members, journalists, lawyers, activists, researchers, and other interested parties? How can officials protect the privacy of individuals whose lives, and homes, are caught on video? What strategies should be used to ensure the integrity of the digital files generated by BWCs? What kinds of retention policies should determine the disposition of the deluge of new, ever-increasing video records? In the rush to put cameras on bodies, these questions had been largely overlooked: a federal survey of 63 law enforcement agencies using body cameras found that as of mid-2014, nearly a third had no written policy to govern their use.[3] This has improved some in the intervening years: according to a study by The Leadership Council on Civil and Human Rights, as of August 2016, 42 of major city police departments 68 (roughly 62%) have BWC policies in place.[4]

But a raft of issues remain, even when agencies have established policies. For instance, studies have found that most of the existing BWC policies are vague or arbitrary on questions related to the preservation of and public access to video captured by police BWCs.[5] Many cities permit or mandate the destruction of footage between 30 days and six months after filming, unless the video depicts “excessive use of force, detention, or civilian complaints” or has “evidentiary, exculpatory, or training value.” Just who makes this determination—and on what basis—remains unclear. Moreover, the majority of BWC policies make it, in researcher Ian Head’s words, “extremely difficult for anyone but the local prosecutor’s office to access the recordings, even though the cameras are being touted by the Department of Justice as a way for police to ‘demonstrate transparency to their communities.’”[6]

Journalists, government sunshine advocates, and racial justice activists have all sounded the alarm about the inadequacy, arbitrariness, and lack of standards governing BWC policies nationwide.[7] But the voice of one important group has largely been missing from these debates: archivists. And the truth is that a great many of the central challenges of BWC policies and practices are core archival topics. At issue here are questions about digital preservation workflows, access policies, privacy concerns, and records retention schedules—questions that professional archivists and records managers address on a daily basis. Our experience with these questions and our longstanding efforts to resolve them in ethical, effective ways, makes our perspectives essential to ongoing conversations about the development of policies and practices related to BWCs.

Archivists and BWCs
Some efforts are now being made to involve archivists, and archival perspectives, in these conversations. For instance, in August 2016, the UCLA Department of Information Studies hosted a three-day forum called “On the Record, All the Time: Setting an Agenda for Audiovisual Evidence Management.” Funded by an IMLS grant and spearheaded by moving image archives scholar and educator Snowden Becker, the convening was designed to create an “action plan for curricula and educational programs that will better prepare information professionals to manage” materials “generated by the widespread use of surveillance cameras, smartphones, and bodycam.”[8]

But in consideration of how widespread the use of BWCs has become—and the enormous records management questions they pose—one archival initiative is hardly enough. As trained professionals, we have a responsibility to add our multiple voices to the conversation.

One node of this conversation that stands to benefit from the thoughtful archivist’s perspective is the access node. Journalists, lawyers, and watchdog groups have argued that BWC footage falls squarely into the category of public records.[9] Although public records laws vary from locality to locality, nearly every state’s definition of a public record includes “information stored in a variety of media” including video produced by government agencies. For instance, the Florida state law defines as public records any material (“regardless of the physical form, characteristics, or means of transmission”) that is “made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” As material created in connection with the transaction of official business of police, BWC footage is clearly a public record in Florida. As such, the law mandates that the agency responsible for that record must make it available “for personal inspection and copying by any person.” And yet, many requestors have had trouble gaining access to police BWC footage in Florida. In early 2015, for instance, officials in Sarasota charged one records requestor $18,000 for fees associated with processing 84 hours of video—an action that had the effect of forcing the requestor to retract his application to view the materials.[10]

Rachel Mattson is a Brooklyn-based historian and archivist. She currently works as the Manager of Special Projects in the Archives of La MaMa Experimental Theatre Club and is a core member of the XFR Collective. She previously volunteered for I-Witness Video, a group that used citizen video and archival strategies to oppose police misconduct. Mattson holds a PhD in U.S. History from NYU and an MLIS from UIUC. Her writing has appeared in publications including Radical History Reviewthe Scholar and the FeministMovement Research Performance Journal, and in books published by Routledge, Washington Square, and Thread Makes Blanket Press.

Citations
[1] “Ferguson Cops Get Body Cameras After Michael Brown’s Shooting,” NBC News Online, September 1, 2014; Uri Friedman, “Do Police Body Cameras Actually Work?” The Atlantic, December 3, 2014; Ian Head, “Rush to Body Cameras Does Little to Create Police Accountability,” The Daily Outrage: The CCR Blog, March 9, 2016.
[2] Matt Pearce, “Growing Use of Police Body Cameras Raises Privacy Concerns,” Los Angeles Times, Sept. 27, 2014. Wortham, who tweets at @jennydeluxe, is quoted in the LA Times article. See also, e.g., Janaé Bonsu, “The Movement for Black Lives Will not be Criminalized,” Institute for Policy Studies, July 18, 2016, ips-dc.org/movement-black-lives-will-not-criminalized/
[3] Cited in Pearce, “Growing Use of Police Body Cameras Raises Privacy Concerns.” The full report can be downloaded from justice.gov/iso/opa/resources/472014912134715246869.pdf
[4] The Leadership Council on Human Rights and Upturn, Police Body Worn Cameras: A Policy Scorecard (2016), bwcscorecard.org.
[5] Campaign Zero, “Police Use of Force Review,”joincampaignzero.org/reports/.
[6] Police Body Worn Cameras: A Policy Scorecard (2016); Campaign Zero, “Police Use of Force Review”; Head, “Rush to Body Cameras Does Little to Create Police Accountability.”
[7]See, for instance, The Leadership Conference on Civil and Human Rights Civil Rights’ May 2015 press release, “Privacy, and Media Rights Groups Release Principles for Law Enforcement Body Worn Cameras.” http://www.civilrights.org/press/2015/body-camera-principles.html
[8] “On the Record, All the Time,” is.gseis.ucla.edu/bodycams; Project Proposal: “On the Record, All the Time,” imls.gov/sites/default/files/re-43-16-0053-16_proposal_documents.pdf. Attendees live-tweeted some parts of this convening using the hashtag #OTRATT.
[9] For instance, the Reporters Committee for Freedom of the Press (RCFP) recently submitted an amicus brief in an Ohio case related to the shooting of Samuel DuBose by a police officer, in which it “argues that bodycam videos are not confidential law enforcement records under Ohio Public Records Act and accordingly must be released upon request.” To read the brief, visit rcfp.org/browse-media-law-resources/briefs-comments/cincinnati-enquirer-v-deters.
[10] The 2016 Florida Statutes: leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0100-0199/0119/0119.html; James L. Rosica, “Police Body Cameras Could Conflict with Florida Public Records Law,” Tampa Bay Times, March 15, 2015. Although charging fees do not technically violate the public records laws, they do make it virtually impossible for most journalists or watchdog organizations to access these records. The practice of charging excessive fees for processing public records requests is an alarmingly common one. It gained new visibility when, in the aftermath of Mike Brown’s murder, several newspapers were charged “exorbitant fees” by officials in Ferguson to news organizations requesting documents. At one point, local agencies in Ferguson billed the Associated Press for 8 hours of work at $135 per hour—“merely to retrieve a handful of email accounts since the shooting.” Andy Cush, “Ferguson is Gouging Journalists in Freedom of Information Requests,” Gawker, September 29, 2014. In an attempt to mitigate this challenge, the Obama administration recently included, in an updated FOIA law, a provision that would prohibit agencies from charging processing fees if they fail to respond in 30 days, Jason Leopold, “Obama Just Made it Much Easier for the Public to Access Public Records,” Vice News June 30, 2016.

 

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4 thoughts on “Police-Worn Body Camera Footage: A Public Record? Part 1

  1. Pingback: Police-Worn Body Camera Footage: A Public Record? Part 2 – Issues & Advocacy

  2. Pingback: Weekly Round-Up! | hls

  3. Without a doubt, the reforms that have been put into place after the murder of Michael Brown have been the most significant police reforms in recent history, if not ever.

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  4. Pingback: Follow Up to Body-Worn Camera Records Hangout | The Schedule

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