A bipartisan bill sponsored by Representative Faircloth and signed into law by Governor Pat McCrory last month establishes clear and uniform standards and procedures that law enforcement must follow in disclosing or releasing video captured by body-worn cameras or “dash cams” used by law enforcement officers.
According to the North Carolina Police Benevolent Association, the legislation contained in House Bill 972 “provides important and uniform guidelines that will provide transparency and accountability while ensuring the protection of witnesses, victims, suspects and all citizens as required pursuant to the rule of law.”
There is little dispute over the benefits of collecting video recordings from police body and dashboard cameras. A recent report by the U.S. Department of Justice details the benefits of body-cams, including specific recommendations for implementation and balancing the concerns of law enforcement, the community, and individual privacy.
The report concludes that “when implemented correctly, body-worn cameras can help strengthen the policing profession. These cameras can help promote agency accountability and transparency, and they can be useful tools for increasing officer professionalism, improving officer training, preserving evidence, and documenting encounters with the public. However, they also raise issues as a practical matter and at the policy level, both of which agencies must thoughtfully examine. Police agencies must determine what adopting body-worn cameras will mean in terms of police-community relationships, privacy, trust and legitimacy, and internal procedural justice for officers.”
It was precisely the absence of body-cam video that prolonged a determination of innocence in the case of officer Darren Wilson’s justifiable shooting of street tough Michael Brown on the streets of Ferguson, Missouri. The lack of video of in this case, and the evidence-free speculation and false narrative that quickly followed, led to protests, riots, vandalism and a drawn-out legal battle for the reputation of an innocent officer who acted in self-defense in the only way the perpetrator left open to him.
More recently, we’ve seen the misuse of video taken by the public in the absence of an official record. The amatuer smartphone video taken of the police shooting of Philando Castile by the victim’s friend led to prolonged public speculation about the use of deadly force in this case. The bystander only captured video of the aftermath of the incident; a police body cam would have told the whole story. Sometimes a body cam is a police officer’s only reliable witness.
In crafting appropriate legislation regulating body cams, the issues at stake were dealing with the complexity of releasing or disclosing the content of police video: that is, which content should be released, when, to whom, and what portions should be available for review and which should not?
It may be the case that different parts of a given video can be subject to differing levels of public access. After all, not every second of video captured on a body cam is pertinent to police business. A person’s image photographed incidentally to a stop or arrest could become subject to misuse in our internet age. Also, exculpatory evidence could be mischievously edited out of a clip by amatuer filmographers or professional news outlets. Should faces or license plate be blurred out or should unadulterated versions be made released for possible publication on Facebook?
Law enforcement officers report that they are concerned that people might be reluctant to call the police when they need them for fear that caller’s circumstance will end up on the evening news. So how can officers protect and serve the public without assurances that our privacy will be protected?
These questions and many more complex questions have been grappled with by law enforcement and discussed carefully by policy analysts.
Before HB972, video recordings from police body and dashboard cameras were considered to be a “public record” unless that record was explicitly exempt under North Carolina’s Public Records Act in order to preserve confidentiality. Videographic footage can be withheld under the Public Records Act if it is deemed necessary to protect (1) a criminal investigation, (2) a intelligence-gathering surveillance activity, or (3) a personnel matter.
This state of the law placed the burden on local law enforcement agencies of determining how to protect potentially sensitive video records when their default status is a public record. Their only reasonable course has been to declare the entire contents as a confidential police or personnel matter. This has the effect of limiting access to content that should be privately disclosed or made public in a timely fashion. A record that has been declared the subject of a personnel matter is virtually closed from the public indefinitely.
Certain localities have approached their own standards and policies for the use of body cams, such as those of Carrboro, Charlotte, Davidson, and Greensboro. But no comprehensive and uniform statewide policy solution has been attempted until now.
House Bill 972 seeks to avoid a policy patchwork in a way that brings uniformity, clarity and transparency while treating everyone involved fairly. HB972 places all of the applicable law into one statute that is written in easy to understand and easy to implement language and provides far more disclosure than under the previously existing law.
HB972 regulates body cams in four main ways:
- Defines the Legal Status of Videos;
- Defines the Process for Disclosure to Interested Parties;
- Defines the Process for Release to the General Public;
- Defines the Dispute Resolution Process for Denial of Requests.
Defines Video Status. HB792 establishes the uniform statewide policy that video captured by law enforcement agencies in the course of carrying out their duties is not considered a “public record” or will it be considered a “personnel record,” as defined by the laws in Chapter 132 and Chapter 121-2(8) of the North Carolina General Statutes. However, the video must be disclosed to qualified interested parties, or released to the general public, under certain conditions as determined by appropriate authorities.
Section 1 (b) of the bill states: “Public Record and Personnel Record Classification. – Recordings are not public records as defined by G.S. 132-1. Recordings are not personnel records as defined in Part 7 of Chapter 126 of the General Statutes, G.S. 160A-168, or G.S. 153A-98.”
Defines Disclosure Process. HB792 provides a simple procedure for viewing or obtaining a copy of a video in appropriate circumstances. The new law establishes whether, to whom, what portions of a recording may be disclosed upon written request by a qualified interested party. The interested party could be a person photographed, an attorney or other representative, or a law enforcement agency. A journalist or news outlet cannot request disclosure. The police chief or sheriff would decide whether to grant access. Unless the agency can demonstrate a legitimate reason to deny the request, the recording must be disclosed as promptly as possible. However, only those portions of the recording will be disclosed that are relevant to the request.
Defines Release Process. HB792 establishes that only the Superior Court can release body cam footage upon written request from any member of the public, including news outlets. The test for a court to release such footage is when the release is deemed “necessary to advance a compelling public interest.” The new law enables the judge to consider the reasons that support the release of the video and to also consider the personal privacy of individuals depicted in the video, the need to not jeopardize a criminal investigation and other factors of importance in that decision. A request for release may denied if the court considers that the footage contains confidential information or may place persons in the footage at risk. Again, only those portions of the recording will be released that are relevant to the request.
Defines Dispute Resolution Process. HB792 establishes the procedure for appealing the denial of a request for a recording. Prior to HB972, there was no appeal process available for when a request for disclosure was denied. The new law provides a clearly defined legal process for the review of a dispute in Superior Court.
Other provisions include guidelines for inter-agency transfer, mandates for local written policies covering the use of body cams and recordings, and records retention rules. Rules governing the destruction of law enforcement videos are set by the Government Records Section of the State Archive retention schedule: “Municipal Schedule, Standard 9, Law Enforcement, Item #136.” Generally, the municipal records retention schedule requires mobile unit video to be retained for at least 30 days, after which they can be destroyed.
Critics claim that police videos ought to belong to the public and that the regulations enacted in this law only serve to keep police body cam video a secret and are meant to protect law enforcement from embarrassment, censure and prosecution.
But “private” is not the same thing “secret.” It’s true that police videos should be made available for public review in every case where it is warranted — but we must take care that disclosure is only made in those cases where it does not compromise the protection of sensitive, confidential or private matters.
On July 11, 2016, Governor Pat McCrory was joined by Department of Public Safety Secretary Frank Perry, sheriffs, police chiefs, capitol police, highway patrol troopers, and legislators to sign legislation that promotes transparency while protecting law enforcement officers, victims and the community. “This legislation fulfills our commitment to protect our law enforcement and gain public trust by promoting uniformity, clarity and transparency,” said Governor McCrory. Watch a video of the Governor’s remarks at the signing ceremony here.
North Carolina Police Benevolent Association President Randy Byrd said, “This new law strikes a balance between the public’s right to know and the sworn duty of our officers to protect the interests of all citizens we serve.” The NCPBA expressed support for the legislation for providing “important and uniform guidelines that will provide transparency and accountability while ensuring the protection of witnesses, victims, suspects and all citizens as required pursuant to the rule of law.”
The North Carolina Troopers Association and the North Carolina Sheriffs Association are also supportive of the legislation. The NCTA extended its appreciation and thanks to Governor McCrory for “once again supporting law enforcement by establishing guidelines related to the release of dash and body camera footage. This bipartisan piece of legislation sets an appropriate framework for the disclosure of law enforcement footage while creating improved transparency and trust.”
The new police body cam regulations become effective October 1, 2016.