Pace on Body Camera Bills Slow; Restrictions Advance

14 May 2015

By Toby McIntosh

Only two state legislatures so far have passed bills restricting the disclosure of videos taken with cameras worn by police officers as the topic has proven hot to handle.

Debates on the competing claims for transparency and privacy remain ongoing in many state legislatures, however, with advancing bills all tilting in the direction of restrictive access.

Four states punted the controversial issue for further study, according to a probably incomplete survey by FreedomInfo.org.

Awaiting the governor’s signature in Florida is a bill that would prevent the disclosure of footage taken in private residences and some other venues, but would let the subjects see the video.

Such a formulation appears to an emerging pattern for drafting such bills.

In South Carolina, legislation nearing approval would exempt footage from the FOI law, but allow access for subjects in the video, criminal defendants in a pending criminal case, persons contemplating to bring civil action and persons whose property was damaged or seized on vide. The House named the legislation after Walter L. Scott, the North Charleston man who was shot and killed by a police officer.

More sweeping is a North Dakota law (HB 1264), signed April 15 by Gov. Jack Dalrymple, which 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.” (See previous FreedomInfo.org report.)

Bills Still Active in Some States

Body camera bills limiting access to the footage appear to be under active consideration in Connecticut, North Carolina, Minnesota, Oklahoma, Oregon, Texas, Washington and the District of Columbia.

The Minnesota Senate May 7 passed a bill including regulations on body cameras. The House had earlier decided not to act on the issue, but the Senate action could force the issue. The Senate legislation would keep body cameras nonpublic unless the recording was made in public and involved the use of a dangerous weapon by a police officer, or physical coercion by an officer that caused substantial bodily harm. Subjects captured in the video would be able to request that the data be made public.

The Oregon House May 5 approved a bill to require police agencies that use body cameras to follow statewide standards. House Bill 2571 A would exempt the videotaped footage from public disclosure, except under limited circumstances. It would allow public release  only if a court decides the images are in the public interest. Further, all facial images – both of police officers and citizens – would have to be completely blurred before releasing the footage. The Senate has yet to act.

Deferral Seen in Some States

All told, 123 bills on body cameras were introduced in 34 states, according to the National Council of State Legislatures,which doe snot track outcomes. (See previous Freedominfo.org report.) But action sometimes has been delayed or deferred.

In some states, such as Missouri, the bills became mired in controversy and nothing is expected to emerge.

Missouri House Bill 762, that would have restricted access until after a case was closed, didn’t make it out of the Senate Committee on Transportation, Infrastructure, and Public Safety on May 7.

Some state legislatures created or assigned groups to study the issue.

In Colorado, a bill (15-1285) awaiting the governor’s expected signature would create a Body-Worn Camera Study Group.

In Arizona, it’s called the Law Enforcement Officer Body Camera Study Committee, established by Senate Bill 1300.

In Maryland, Senate Bill 482, with its original restrictive provisions crossed out, calls for the Maryland Policy Training Commission to develop and publish a policy for the issuance and use of body cameras. Topics to be addressed include “access and confidentiality of recordings.

In Utah, Senate Bill 252 provides that the legislative Administrative Rules Review Committee study the issue and make recommendations.

Veto of Florida Law Urged

Barbara Petersen, president of the First Amendment Foundation, has called for the governor to veto the bill, saying “the exemptions run contrary to the purpose of the cameras, which are meant to provide more oversight and accountability for the actions of the law enforcement officers.” The Foundation had previously issued objections to the bill. The governor has until May 23 to sign or veto it. Critics of the bill expect him to sign it. Press Secretary Jeri Bustamante said, “Governor Scott is currently reviewing the legislation.”

The Florida bill would create a new, retroactive public record exemption that makes a body camera recording, or a portion thereof, confidential and exempt from public record disclosure, if the recording is taken within the interior of a private residence; within the interior of a facility that offers health care, mental health care, or social services; or in a place that a reasonable person would expect to be private.

The bill provides specific circumstances in which a law enforcement agency may disclose a confidential and exempt body camera recording, and additional circumstances in which a law enforcement agency must disclose such a recording.

Body camera recordings also may be disclosed by a law enforcement agency to another governmental agency “in the official duties and responsibilities” and to persons recorded (or their representative), but “only those portions that are relevant to the person’s presence in the recording.” Those not depicted may see the footage of the interior of their residence.

In addition, a court may order disclosure if “necessary to advance a compelling interest” and must consider eight limiting factors, such as possible harm to the reputation of a person depicted.

Petersen said Florida already has “a long history” of law enforcement cameras, including dash cameras, without secrecy provisions and there have been no reported abuses. “In short this bill attempts to fix a problem that simply doesn’t exist,” she said.

She said while the bill allows the secret portions of the recordings to be released under a court order, it could prove to be a costly burden and that the bill has a lengthy list of criteria that must be met prior to the release.

Petersen said a better course of action would be a law requiring law enforcement agencies “to adopt policies about the use of body cameras by their officers rather than create an overbroad and unnecessary public record exemption.”

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