Police-Worn Body Camera Footage: A Public Record? Part 2

Archivists on the Issues is a forum for archivists to discuss the issues we are facing today. If you have an issue you would like to write about for this blog series or a previous post that you would like to respond to, please email archivesissues@gmail.com. Please note that opinions expressed in Archivists on the Issues posts do not indicate an official stance of SAA or the Issues and Advocacy Roundtable.

This post, written by Rachel Mattson, is part two in a two-part series regarding the debate regarding police body-camera footage’s classification as a public record. Part 1 is available here.

BWCs: The Wild West of Records Requests
Requestors seeking access to police-worn body camera footage nationwide have encountered a diversity of other obstacles. Indeed, the Reporters Committee for Freedom of the Press (RCFP) recently called police body cam footage “the Wild West of open records requests,” noting that obtaining access to these records “is proving to be an uncertain and challenging endeavor.”[1] One justification that agencies often use for the withholding of footage is its sensitive nature. BWC footage raises serious concerns about privacy, security, and confidentiality. But as RCFP’s Adam Marshall notes—and as video archivists who work with human rights documentation have long known—there exists a wide range of tech and policy strategies that can make video available to the public while protecting individual privacy and security.[2]

Possibly the greatest threat to the public’s ability to access BWC going forward may be the efforts currently underway in many states to pass legislation that would exempt BWC footage from public records laws. In July 2016, North Carolina made national news when governor Pat McCrory signed a bill declaring that “body camera and dash camera footage are not public record[s].” Similar bills are currently being considered in Michigan, New Hampshire, Minnesota, Louisiana, and California, among other states. In Utah, one lawmaker has even proposed a bill that would officially classify all footage as “a private government record” if it depicts any “images of nudity, death, or gruesome events.” Who determines if an image is gruesome? “Something’s gruesome if police say it is.”[3]

In the view of many observers, access to police BWC footage, especially of fatal police shootings, is “crucial” to both “the public’s ability to hold police responsible for their conduct” and officers’ ability to exonerate themselves when wrongly accused of misconduct.[4] And the potential privacy and security concerns that these records raise remain separate from the question of whether these videos should be officially classified as public records. Indeed, many confidential and sensitive records, including federal intelligence records, are classified as public records under law. Body camera footage is not more sensitive than these kinds of records, and should not treated as such.[5]

It may be the case, as several activist groups have claimed, that equipping the police with cameras is the wrong strategy for addressing the larger problems of police accountability and racial justice. A broad base of community and activist groups have critiqued the practice of equipping police with BWCs. For instance, We Charge Genocide, a Chicago-based group working toward restorative justice solutions for police misconduct, suggests that “when police control the cameras, those cameras are at the service of police violence.” In fact, they observe that one body camera manufacturer “actually uses the slogan ‘Made by Cops for Cops. Prove Your Truth.’” The recent “Vision for Black Lives” Statement put forth by the Movement for Black Lives likewise includes a demand to “End the Use of Technologies that Criminalize and Target Our Communities (Including IMSI Catchers, Drones, Body Cameras, and Predictive Policing Software).”[6]

Nonetheless, the calls for and deployment of police-worn body cameras increase every day. As more local policing agencies equip officers with BWCs, we have a responsibility to engage with challenges that these government-generated records present. Indeed, as professional archivists and records managers, some of us may soon manage BWC footage as part of our official responsibilities. As we have learned recently, making this video a public record will not in-and-of-itself put an end to police murder of black and brown people. In order for that to occur, access to documentation will have to be coupled with mechanisms that make it possible to hold public servants accountable for their actions. But for BWC footage to be used in the pursuit of accountability and justice, it has to be a public record first. [7]

SAA and BWCs
This fall, I will work to start a conversation about BWCs among SAA members and hope to put forth proposal to the Society of American Archivists’ Committee on Public Policy (COPP) that SAA take a public stand supporting policies that, at a minimum, ensure that police BWC footage be officially classified as a public record.[8] I hope you’ll support—or join!—this conversation and effort. On its main webpage, COPP heralds the power of archival records to “ensure the protection of citizens’ rights, the accountability of organizations and governments, and the accessibility of historical information,” noting that the SAA “believes that archivists must take an active role in advocating for the public policies and resources necessary to ensure that these records are preserved and made accessible.” As BWCs gain widespread usage by U.S. police departments, the footage they generate will become an ever-more pervasive part of the criminal justice system. Ensuring that videos remain public records is something that, as an archival organization committed to “the public’s right to equal and equitable access to government information found in archives,” we should support wholeheartedly.[9]

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] Adam Marshall, “Police Bodycam Videos: The Wild West of Open Records Requests,” rcfp.org/bodycam-video-access.
[2] Marshall, “Police Bodycam Videos: The Wild West of Open Records Requests.”
[3] “North Carolina Keeps Public From Seeing Police Camera Video,” Winston Salem Journal, July 11, 2016; Sophia Murguia, “More States Set Privacy Restrictions on Bodycam Video,” rcfp.org/browse-media-law-resources/news/more-states-set-privacy-restrictions-bodycam-video; “Police Bodycam Footage is a Vital Public Record; Don’t Restrict It,” the Utah Standard-Examiner, February 12, 2016.
[4]“Police Bodycam Footage is a Vital Public Record; Don’t Restrict It,” Standard-Examiner.
[5] I thank Eileen Clancy for reminding me of this fact. For more on the parameters of the federal records laws, see e.g. Douglas Cox, “Burn After Viewing: The CIA’s Destruction of the Abu Zubaydah Tapes and the Law of Federal Records,” Journal of National Security Law and Policy, Vol. 5, 2011, pp. 131-177.
[6] We Charge Genocide, “Statement on Cops and Cameras,” http://wechargegenocide.org/statement-on-cops-and-cameras; The Movement for Black Lives, “A Vision for Black Lives, Policy Demands for Black Power, Freedom and Justice,” policy.m4bl.org/end-war-on-black-people/. See also Caruso, Burns, and Converse, “Slow Motion Increases Perceived Intent,” Proceedings of the National Academy of Sciences 113 (33) May 2016, pnas.org/content/113/33/9250.full; and Williams et al., “Police Body Cameras: What Do You See?” New York Times, April 1, 2016.
[7] For a critical analysis of the complexity of the issues at hand and the kind of work that needs to be done to address them, see Kimberle Crenshaw and Andrea Ritchie’s indispensible report, “Say Her Name: Resisting Police Brutality Against Black Women,” African American Policy Forum, 2015.
[8] The proposal is currently in development. If you wish to contribute or add your name to the list of supporters, please email keepbwcfpublic [at] gmail [dot] com.
[9] SAA Public Policy Agenda, archivists.org/advocacy/publicpolicy/saapublicpolicyagenda#.V6UTso7OlqA; Committee on Public Policy webpage, archivists.org/groups/committee-on-public-policy#.V6Y3N47OlqB

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8 thoughts on “Police-Worn Body Camera Footage: A Public Record? Part 2

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

  2. Interesting article. My city’s PD will soon be using body cameras universally. They are discussing access to the films before full implementation. From what I, a member of the general public, have read, the discussion assumes that the film is a public record. However, there are lots of concerns about access to the recordings from both the police and community activists. Our city is small, and there is no dearth of FOIL requests. The concern is that cameras may make people more reluctant to call the police, especially in domestic disputes. There is also concern that landlords may use the film as evidence to evict tenants. Also, just plain old nosy neighbors asking to see the film of a police visit in their neighborhood. I don’t know that the department and the DA have come to any conclusions yet.

    I wish I had read this before “Coffee with a Cop” last week, so I could have asked more. I hope to attend a community policing meeting this week. If anything on this issue is discussed, I will post!

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    • Susan, I appreciate your comment. I think we have to be careful to draw a distinction between a video that is a public record and a video that is available to anyone at anytime for any reason. Many thoughtful advocates have pointed out that, managing BWC footage requires carefully thought out policies, including policies that curtail the use of BWCs for personal vendettas to to violate someone’s privacy. Making sure something is a public record is not the same as putting it on YouTube.

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  3. These are great posts, hats off to I&A for featuring this issue. As Vice-Chair of the Records Management RT, we have also been discussing this issue (primarily from the retention side). I’m glad that these posts mentioned both Snowden Becker’s work on this with the UCLA forum, as well as the BWCScorecard website. One additional resource I would recommend is the Brennan Center’s table on retention periods:
    https://www.brennancenter.org/analysis/police-body-camera-policies-retention-and-release

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    • Thanks, Eira. Talked to the Chief in charge of the body camera initiative in our city last night. This is difficult because he said that there are not yet best practices and state law differs everywhere, so they can’t replicate what another department is doing. They are extending the retention period for film that does NOT record an arrest or use of force from 90 days to 6 months, but, of course, that ups the expense by a great deal.

      He told me that as of October 1, it is illegal in NC to release video of a police shooting to anyone (I assume those involved in any court cases are exempt, although he didn’t say this.) Are you familiar with this law? I am not in NC, so this is just curiosity on my part.

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  4. After almost a year of research and discussion we approved retention schedules for our state’s local law enforcement agencies, thirty days for “non-evidential” recordings and one year after final disposition of the case for “evidentiary” recordings. We found concerns over when the camera was supposed to be on — full-shift cameras would record a LOT of “footage,” but depending on the officer to manually turn it on and off could result in missed incidents. (In-car video is often automatically activated by either lights-and-siren or a sudden increase in speed.) This causes concern from the archives / records management standpoint for both the volume of material and long-term accessibility. But we addressed only the retention period, leaving the policy decisions over usage to the local agencies.

    There was no question to us that these are public records, but whether they are publicly accessible was also left to the agencies. The consensus seems to be that they are part of the “investigative report,” which is exempt from public access, but may be released at the agency’s discretion.

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  6. Pingback: END OF YEAR STEERING SHARE: Tales of an Engaged Archivist – Issues & Advocacy

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