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

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 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.