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Los Angeles, Texas Take Contrasting Approaches in New Policies on Access to Police-Worn Body Camera Footage

March 22, 2018

After years of debate over police misconduct following the shootings of unarmed black men like Tamir Rice, Laquan McDonald and Philando Castile—in which publicly available videos of the incidents played a central role—many states have passed laws restricting the release of such videos. Some local police departments, however, have slowly begun acceding to public demands to provide greater access to footage. Developments this week in Los Angeles and Texas show the opposite paths cities and states are taking on public access to police-worn body camera footage.

On March 20, the Los Angeles Police Commission, the LAPD's civilian oversight board, voted 4-0 to enact a strong new policy making the Police Department's video footage of "critical incidents" such as officer-involved shootings public after 45 days. The LAPD will also release footage from security cameras and bystanders' cell phones, and other contextual information. The Commission released the policy in February after receiving widespread support for such a plan. The policy will take effect on April 19 and will apply to all incidents occurring thereafter.

In Texas, meanwhile, Attorney General Ken Paxton released two advisory opinions on March 19: one opinion saying police may decline to release footage in response to an open records request if they believe it will hinder an ongoing criminal investigation or prosecution, and the other confirming that officers can view footage from their own body cams and others' before making any statements. Though the opinions are not legally binding, state agencies rely on them as official interpretations of the law.

L.A. Policy Helps Improve the Legal Landscape of Body Cam Footage

In a white paper MFIA released in December 2015, titled "Police Body Cam Footage: Just Another Public Record," the Clinic argued that police departments should treat videos as governed by their states' existing open records laws. Instead, many states and departments argue that the videos are not public records or that they automatically fall under one of the laws' exemptions. This creates transparency issues for the press and public, and prevents body cams from improving police accountability. Noting concerns that releasing videos would hinder police work and invade individuals' privacy, the paper asserted that existing public records laws provide sufficient safeguards.

In line with these arguments, the new LAPD policy recognizes that "[t]he public has a strong interest in obtaining timely access to information, including video footage," but notes that it will balance this with the privacy interests of those captured on film. As such, the LAPD will not release videos prohibited by court order, will redact or edit footage of minors, and will notify the filmed individuals 48 hours before the video's release.

While the new LAPD policy is a significant improvement, however, it does not solve all of the Department's body cam transparency problems. The LAPD will presumably continue to treat all video of incidents not ending in death or serious injury as exempt from disclosure under the California Public Records Act's "investigative records" exemption.1  To better increase transparency, the Department should treat its body cam footage as a public record, available to the press and public upon request. Additionally, the policy also allows footage to be withheld if two commissioners and the police chief vote that there is a valid, specific reason for doing so. These decisions will be reviewed biweekly, with a full Commission review after 28 days. The LAPD should provide strict guidelines on what constitutes a valid reason for withholding videos under these circumstances.

Despite these flaws, the LAPD policy offers lessons on how to undertake a successful policymaking process.  For years, the LAPD denied public access to body cam footage while buying growing numbers of the devices, including with help from a $1 million federal grant. But after two people died in officer-involved shootings within 28 hours of each other in October 2016, the Commission began reconsidering its body cam access policies. As part of this process, the Commission brought in NYU Law School's Policing Project, which released a report showing that over 89% of surveyed L.A. residents and 63% of LAPD officers approved of making body camera footage public at some point. The group surveyed 3,200 people, and solicited additional public comments. By conducting research and bringing in varied stakeholders, the Commission's policy garnered broad support despite its controversial subject.

Cities Can Lead in Body Cam Transparency Improvements

The LAPD's policy also shows that even as states enact newly restrictive laws, local police departments can take the lead on improving public access to body cam footage. In California, statewide legislation that would increase public access to body cams had consistently failed. Nationally, states like Wisconsin, Michigan, and Pennsylvania have recently passed legislation limiting public access to videos. Though not all states have gone this route-a Kansas bill that would release officer-involved shooting footage within 20 days has been advancing through the legislature-the trend has been troubling. State officials have also enacted restrictive new regulations. A 2016 policy from Texas Attorney General Ken Paxton, who wrote this week's advisory opinions, now requires police departments to charge fees for the release of footage.

The courts have not provided much assistance either. All six federal circuit courts that have considered the issue have held there is a First Amendment right to record the police, but none have declared a constitutional right to access the video footage.2  State courts have issued mixed rulings. New Jersey, for example, declared the records accessible under its common law right of access but not its Open Public Records Act.3  Ohio's highest court ruled that dash cam footage was a public record,4  but has avoided ruling that body cam footage is as well.5

Meanwhile, cities such as Chicago and Seattle have started releasing video footage of officer-involved shootings within 60 days and 72 hours, respectively. As state legislatures and officials continue to cut off the press and public from information central to issues of pressing national concern, municipalities and police departments should follow L.A.'s example and take action to address these issues. Body cam footage can inform debate and boost police accountability, but only if it can be seen by all.

 

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1.  Cal. Gov't Code § 6254(f). That this is one of the California Public Records Act's most contested exemptions, as law enforcement agencies, with the support of the courts, have interpreted the    "investigative records" exemption quite broadly.
2.  See, e.g., Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017).
3.  North Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 163 A.3d 887 (N.J. 2017).
4.  State ex rel. Cincinnati Enquirer v. Ohio Dep't of Pub. Safety, 71 N.E.3d 258 (Ohio 2017)
5.  State ex rel. Cincinnati Enquirer v. Deters, 71 N.E.3d 1076 (Ohio 2016)