North Dakota Bars Disclosure of Private Place Police Videos

16 April 2015

North Dakota appears to be the first state to have passed a new law restricting access to videos taken with body cameras worn by law enforcement officials.

The bill signed April 15 by Gov. Jack Dalrymple states: “An image taken by a law enforcement officer or a firefighter with a body camera or similar device and which is taken in a private place is an exempt record.”

The state House of Representatives approved the short bill (HB 1264) by a 87-5 vote following its unanimous 45-0 passage in the Senate.

Legislation is pending in at least 30 states that would place various l of restrictions on public access to body camera footage. (See previous report.)

In some states the legislation appears to have been stalled by opposition, largely from media groups. In other states action at the committee level is under way, according to press reports reviewed by and conversations with state-level group officials.

Privacy a Primary Concern

Concern about protecting private information is frequently voiced by those supporting controls on the body camera footage. Some proposals address this in part with controls on when the cameras get turned off and on. Limits on how long footage is retained also are common in such legislation. Other provisions seek to place conditions on disclosure of such footage.

Opponents of such controls frequently argue that exemptions in state freedom of information laws already would protect against the release of private and sensitive information.

Protection of privacy is addressed a Florida bill (CS/SB 248), too, and one critic warned that the controls could be too broad.

Barbara Petersen, executive director of the First Amendment Foundation, wrote in a letter stating in part: “Though privacy is a concern, an individual’s right to privacy must be weighed against the public’s need and ability to hold both law enforcement and citizens accountable. This per se exemption would shield, for example, video showing whether police are using excessive force when executing arrests or search warrants, or whether such force was justified.”

The privacy issue was also recently addressed by Adam Marshall, the Jack Nelson Legal Fellow at the Reporters Committee for the Freedom of the Press.

He wrote:

When it comes to exemptions themselves, privacy can be a potentially complicated issue. Body cameras may record sensitive material, such as the identity of a sexual abuse victim, a young child, or simply the interior of a home. Almost all states have privacy exemptions that allow this type of information to be withheld, but there still may be a public interest in disclosure in those situations – for example, if there is a questionable use of force inside someone’s home. Some states balance privacy exemptions with the public interest, which may allow these videos to be released.

Another take on the privacy issue came in a blog post by Mathew Feeney on the Cato Institute website.

He concluded:

Police body cameras do raise a host of legitimate privacy concerns. But police body cameras are often used to record encounters that occur in public where, given the state of modern technology, none of use can reasonably expect the degree of privacy that, perhaps, we might otherwise like. The police encounters that take place inside private residences and inside hospitals and schools are being considered in ongoing conservations on body cameras, where the language of privacy is often heard.

Privacy Provisions in Other Bills

In South Carolina, a bill (S 47) would put decisions on releasing footage outside the purview of the FOIA law, which prevent releases that would hinder law enforcement. The bill says, “The retention and release of audio and video data recorded by a body-worn camera is subject to South Carolina’s laws governing the retention and release of evidence by law enforcement agencies.”

The mayor of Washington, D.C., recently proposed to bar disclosure of body cam footage, as described in an article by Bill Lucia that contrast her proposal with the disclosure experiments under way in Seattle.

In Michigan, a pending bill (HB 4234) uses language almost like that in the North Dakota bill: “…a recording taken by a law enforcement officer with a body-worn camera or similar device that is taken in a private place is exempt from disclosure under the freedom of information act…”

The Michigan bill goes on to permit requests for recordings taken by a law enforcement officerif the audio or video recording is relevant to the criminal prosecution of the individual or a civil action brought by the individual” Such requests could be made by those who were the subject of the recording (or a parent, legal guardian of attorney), whose property has been seized or damaged

The Michigan bill also would set conditions for the three year retention of recordings in some instances, such as if it was relevant to a complaint against a law enforcement officer or agency.

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