BB&K attorney Gary Schons examines police body cameras from a variety of angles for the California District Attorneys Association’s Prosecutor’s Brief.

The use of body-worn cameras by law enforcement officials and what access the public should have to the recorded footage, continues to be a hot-button topic in California and throughout the United States. This article examines police body cameras from a variety of angles, including tactical application, public records laws, and what role prosecutors have when handling body-worn camera data.

Nearly every major police department in the country plans to implement a body-worn camera (BWC) program, according to a recent national survey by the Major Cities Chiefs Association (MCCA) and Major County Sheriffs’ Association (MCSA).[1] While less than 20 percent of the 70 agencies surveyed are fully operational, half have started the implementation process or have completed pilot programs.[2] Approximately 5 percent report that they do not intend to implement a BWC program.[3]

A source at the International Association of Chiefs of Police (IACP) has said that the primary reasons given by chiefs whose departments do not plan on implementing a BWC program are privacy concerns, and fear that BWC footage could be posted publicly online. In light of recent high-profile cases involving unarmed men shot by law enforcement, it will not be a matter of if law enforcement agencies implement BWC programs, but when, as the public clamors for more transparency and accountability involving police interaction with the public.

BWC Implementation Obstacles

Perhaps the biggest challenge with implementing a BWC program is determining who has access to the recorded data. Among the factors to consider are:

• Who will have access to the footage and under what circumstances?
• What methods will be used (e.g., redaction) to modify the “raw data” to protect the privacy interests of both the defendant(s) and/or victim(s), while at the same time, presenting a complete and balanced depiction of events in the field?
• Will the data affect the defendant’s right to a fair trial?

In addition to the public access question, police agencies face a host of policy and procedure concerns in implementing a BWC program. These include when to activate and shut off the recording; whether to give notice that the camera is recording; where, when, what, and who to record and not record; and establishing retention periods.

Granting the Public Access

The MCCA-MCSA survey  found approximately 72 percent of police agencies are required to provide footage for inspection under their state’s public records laws, 9 percent are exempt, and 18 percent were not certain if their state’s public records laws required providing access.[4] California agencies fall into this latter category as the application of the California Public Records Act (CPRA) to provide or restrict public access to BWC data has yet to be definitively determined.[5]

Research from the Reporters Committee for Freedom of the Press has revealed that of the 26 states that have either introduced or passed a law addressing the question of whether or not the footage should be public record, 21 states have proposed regulations that require additional restrictions, which hamper public access in “varying levels of exclusion.”[6] The restrictions range from “private place,” to restrictions on video recorded in health care facilities, to complete exemptions unless the person requesting the data is the subject of the record.[7]

What has emerged is a realization that existing “freedom of information” and public record laws, most of which either require unfettered public access or afford police agencies complete discretion over permitting or denying public access, are inadequate to the task of balancing the competing interests raised by the question of public access to BWC data. As legislators wrestle with these policy issues, and courts sort through the public records statutes, law enforcement executives and prosecutors will be called on to improvise policies that adequately and fairly balance the competing interests at stake.

The Potential Consequences of Public Access to BWC Data

Many law enforcement executives insist that access to BWC data and its release by the agency to the media or a member of the public should be within the discretion of the agency—the chief of police or sheriff—or subject to release pursuant only to a court order. These law enforcement executives believe that unfettered public access to BWC data poses an existential threat to the maintenance of and wider implementation of BWC technology by law enforcement agencies.

In other words, if law enforcement—police and prosecutors—lose control over access to BWC data, the chiefs and sheriffs will likely take the technology off the chests of their officers and out of the field. There are ample reasons to support this position. Law enforcement interests in restricting access include maintaining public trust in the integrity of police processes and investigations, ensuring fair prosecutions, protecting the privacy of both the public and its officers, and being fair to its own officers. Costs associated with complying with records requests are also a significant factor.

There is at least one other additional consideration, however. Sometimes lost in the debate over public access to BWC data is how resolving those competing policy considerations will affect the long-term effectiveness of BWC programs and officer compliance with program policies and procedures.

A recent Washington Post article reported that 80 percent of the Chicago Police Department’s dashboard camera videos are missing audio, as officers stashed microphones in squad car glove boxes, pulled out batteries, or broke or removed antennas.[8] The article documented cases where a dashboard camera system was repaired, only to be busted again the next day from obvious “intentional damage.”[9] Chicago is not alone. An April 2014 Los Angeles Times article reported widespread tampering with voice recording equipment in dozens of LAPD patrol cars in an effort to avoid being monitored while on duty. Half the patrol cars in one patrol division were missing antennas.[10]

These acts of petty vandalism to stymie the effectiveness of BWC programs and non-compliance with policies and procedures to circumvent the goals and promises of BWC technology are not necessary, however. Since a BWC is activated by the officer in the field, the officer merely needs to “forget” or “neglect” to activate the camera in the heat of responding to an emerging situation in the field, or decide that policy guidelines provide the officer the discretion not to record.

The point here is that officer trust in the integrity of the BWC program, which is bound up in who has access to BWC data and under what circumstances, will ultimately determine the success or failure of this promising technology.

Transparency and Accountability: A Double-Edged Sword for BWCs?

BWCs were brought to the forefront of the national discussion on police accountability during the Aug. 2014 riots in Ferguson, MO. What happened next is well documented: The engagement provoked Brown to reach into Wilson’s squad car, which resulted in Brown’s shooting. Afterward, President Obama called for all officers to be outfitted with BWCs.

The U.S. Department of Justice heeded the call nine months later, launching a $20 million body camera pilot program in May 2015. In the press release announcing the program, U.S. Attorney General Loretta E. Lynch stated that such cameras “hold tremendous promise for enhancing transparency, promoting accountability, and advancing public safety for law enforcement officers and the communities they serve.”[11]

Although Ferguson was a public flashpoint for BWCs, policies governing BWCs and their deployment had been developed and implemented in various law enforcement departments—albeit to a limited extent— long before that incident. Just months after the Ferguson incident, The Journal of Quantitative Criminology published a study done by Chief Tony Farrar of the Rialto (CA) Police Department, which studied the effect of how BWCs used in his department affected police interaction with the public. The findings of his original, year-long study were previously released in March 2013, and have since garnered wide media attention.[12]

The study involved 66 officers, half equipped with BWCs and half without them. The results showed that use-of-force incidents fell 59 percent when officers were equipped with BWCs and complaints against officers dropped by 87 percent compared to the previous year’s totals.[13] The study suggested that both officers and citizens behaved less forcefully when officers were equipped with BWCs, the so-called “civilizing effect.”[14]

Indeed, transparency and accountability are laudable goals for any police department debating the pros and cons of implementing a BWC program. Wade Henderson, President and CEO of the Leadership Conference on Civil and Human Rights, recently told reporters: “Without carefully crafted policy safeguards, there is a real risk that these new devices could become contributory instruments of injustice rather than tools for accountability.”[15]

Henderson’s observation is notable. As an advocate for transparency and accountability, his thoughts ring true for those on both sides of the body-worn camera debate. However, if these goals are not tempered to a degree, they can stunt the implementation of BWC programs, or wreck the effectiveness of programs already underway. These considerations must be factored into the policy debate on BWCs.

Although there are potential benefits of BWCs for police-citizen interactions and police transparency and accountability, the devices were initially designed as tools for law enforcement. BWCs capture footage to enhance law enforcement’s ability to determine whether a crime has occurred, identify perpetrators and witnesses, and promote effective prosecutions and the likelihood of conviction with evidence that is accurate, in real-time, on-the-scene, and virtually unimpeachable.

Model police agency BWC policies and statements nearly universally state that BWC data is “evidence” for use in criminal investigations and prosecutions. This is critical to addressing the public access issue, both legally and as a matter of public policy. Therefore, it will fall to prosecutors, working with their law enforcement-allied agencies, to underscore and keep this notion at the forefront of the public access debate.

The Role of Prosecutors in Handling BWC Data

Prosecutors are already preparing for and facing the challenges of BWC data as evidence in criminal case evaluations and prosecutions. In San Diego County, where approximately 1,000 BWCs have been deployed by less than half of the county’s law enforcement agencies, the district attorney’s office received more than 40,000 recordings in eight to nine months in 2015.[16] Prosecutors in the county expect to receive more than 100,000 recordings this year as an additional 1,800 BWCs hit the streets.[17]

It’s both a time-consuming and expensive process for law enforcement and prosecutors because these recordings must be collected from law enforcement agencies; categorized to case submissions; reviewed, stored, and provided in discovery to the defense; and prepared for use at trial. When released in discovery or used in court, prosecutors will have to consider issues of privacy and law enforcement and witness security. All of these resources are in service to BWC data as evidence in criminal investigations and prosecutions, and for that purpose, alone.

CDAA’s model draft policy for BWCs calls for recordings related to criminal charges to be:

“Treated the same as other forms of direct evidence which must be provided to the prosecution and are subject to discovery and disclosure in accordance with law. Prosecuting agencies must be made aware of all BWC recordings when they pertain to any criminal case so they can comply with their discovery obligations. Similarly, BWC recording evidence must be secured and subject to chain of custody policies to protect the integrity of the evidence.”

The policy draft also calls for dissemination for official purposes only pursuant to department policy, and when appropriate, court orders and/or redaction limiting the public dissemination of BWC recordings should be secured prior to distribution.

Applying the California Public Records Act to BWC Data

Recognizing these competing policy concerns and the primary status of BWC data as evidence in criminal investigations and prosecutions, how will California address the question of granting the public access to BWC data? Control over access to BWC data will likely come down to whether such data is considered a “public record” under the CPRA.[18] And if it is, whether it will be exempt from disclosure under one or more of the specific exemptions provided for in the law, most likely the “investigative records” exemption.[19]

Before examining that precise question, however, it is critical to note, as suggested earlier, that the existing CPRA is likely inadequate because it does not address and balance the competing interests at stake.

Unless the public’s interest in non-disclosure of a record clearly outweighs the public’s interest served by disclosure,[20] any refusal to disclose must be based on one of the specific statutory exemptions set forth in section 6254 of the California Public Records Act.[21][BH1]  Accordingly, applying the CPRA tends to produce an “all or nothing” outcome. While there can be little question that BWC data qualifies as a “public record” under the definition provisions of the CPRA,[22] if the “investigative records” exemption applies, BWC data is locked away beyond public access, unless an agency volunteers to release it.[23][VK2]

Second, the sweep of the exemption tends to be wide and non-discriminating. The “investigative records” exemption applies to records of investigations conducted by any state or local police agency and investigatory or security files compiled by any other state or local agency for law enforcement purposes.[24]

Because nearly all BWC recordings are related in some way to a criminal investigation—however minor, tangential, or attenuated—and whether pursued as such or not, they would be included, and once compiled and retained, they would be in a “file” for “law enforcement purposes.”

Finally, once an exemption from disclosure applies, it is effectively permanent. While the California Supreme Court has held that a record, otherwise a “public record,” placed in an investigative file could lose its exempt status when the prospect of enforcement in the underlying matter is no longer “concrete and definite,” it has made it clear that this temporal qualifier does not apply to records of investigations.[25] Therefore, the CPRA is “all or nothing,” potentially sweeps broadly, and provides a permanent bar to access. All of these aspects of the law could prevent reasonable accommodation of the competing interests at stake in the question of public access to BWC data.

A harbinger decision, illustrating each of these points, emerged this past spring when the Second District Court of Appeal in Los Angeles (Div. 3) decided the case of ACLU v. Superior Court of Los Angeles County and held that the “investigative records” exemption of the CPRA exempted automatic license plate reader (ALPR) data from mandatory disclosure.[26][BH3]  In that case, the Los Angeles Chapter of the American Civil Liberties Union had sought this data from law enforcement agencies of both the city and county of Los Angeles under the CPRA. The government entities declined to produce it, claiming the exemption, which was sustained by the superior court and affirmed by the appellate court.

The appellate court recognized that “the automated nature of the ALPR system, with its capacity to capture and record millions of plate scans throughout Los Angeles City and County, sets it apart from the traditional investigatory techniques that courts have considered in earlier cases addressing the scope of the investigative records exemption.”[27]

The court went on to hold, however, that the distinction was irrelevant to the question of whether ALPRs are meant to investigate suspected crimes. The court concluded that indeed that was the primary purpose and therefore, the data is protected under the investigative records exemption, shielding plate scans from disclosure under the CPRA.[VK4] 

Applying this reasoning to BWC data is self-evident, and if binding, would point the way to resolving the “investigative records” exemption as applied to BWC data—it would apply. However, the California Supreme Court stepped in and granted review in that case on July 29, 2015. The case is now pending and is unlikely to be decided until late 2016 or early 2017.

Improvising Public Access Policies to BWC Data

Pending a judicial determination of applying the CPRA to BWC data or a legislative enactment addressing the issue, law enforcement executives and prosecutors are left to improvise solutions. Some departments have already adopted policies or practices which guide the release of BWC data outside the criminal justice system and the dictates of the CPRA.

For example, subject to approval of the chief or sheriff, some agencies allow BWC data to be viewed by those who have made an official complaint of misconduct against an officer. In practice, this commonly causes the compliant to be withdrawn or quickly resolved.

Others have or are working toward policies in high-profile cases to guide the release of BWC data to quell public unrest or to respond to misinformation in the community. In addition, some agencies are working on policies or protocols which will guide the release of BWC data after there is no longer a legitimate law enforcement reason or purpose for maintaining confidentiality, i.e., all relevant authorities have completed or closed criminal or administrative proceedings.

In shaping these policies, prosecutors and law enforcement executives need to take into account and accommodate the interests and concerns—public trust, security, privacy, fairness, the integrity of law enforcement and criminal justice processes, transparency, and accountability—of all stakeholders. That includes those involved in the criminal justice system, the media, law enforcement, and the general public. Best practices suggest that such protocols and practices can be developed after consulting with all stakeholders in an open and public process that will guide future decisions to be made in a transparent and principled way.

[1] Mike Maciag. “Survey: Almost All Police Departments Plan to Use Body Cameras,” (Jan. 26, 2016) Governing <http://www.governing.com/topics/public-justice-safety/gov-police-body-camera-survey.html> (accessed Feb. 8, 2016).

[2] Id.

[3] Id.

[4] Id.

[5] Gov. Code §§ 6250 et seq.

[6] Kelly Swanson. “Advocates push back against FOIA exemptions for bodycam footage,” (Jun. 9, 2015) Reporters Committee for Freedom of the Press <http://www.rcfp.org/browse-media-law-resources/news/advocates-push-back-against-foia-exemptions-bodycam-footage#sthash.adxNG2NG.dpuf> (accessed Feb. 9, 2016).

[7] Id.

[8] Radley Balko. “80 Percent of Chicago PD dash-cam videos are missing audio due to ‘officer error’ or ‘intentional destruction,’” (Jan. 29, 2016) The Washington Post <https://www.washingtonpost.com/news/the-watch/wp/2016/01/29/80-percent-of-chicago-pd-dash-cam-videos-are-missing-audio-due-to-officer-error-or-intentional-destruction/> (accessed Feb. 9, 2016).

[9] Id.

[10] Joel Rubin. “Police Commission calls for public airing of LAPD tampering case,” (Apr. 8, 2014) Los Angeles Times <http://articles.latimes.com/2014/apr/08/local/la-me-ln-lapd-tampering-20140408> (accessed Feb. 9, 2016).  

[11] Office of Public Affairs, “Justice Department Announces $20 Million in Funding to Support Body-Worn Camera Pilot Program,” (May 1, 2015) U.S. Department of Justice <http://www.justice.gov/opa/pr/justice-department-announces-20-million-funding-support-body-worn-camera-pilot-program> (accessed Feb. 9, 2016).

[12] “Body-worn camera study by Executive Fellow Chief Tony Farrar is published in scientific journal.” <http://www.policefoundation.org/body-worn-camera-study-by-executive-fellow-chief-tony-farrar-is-published-in-scientific-journal/> or Tony Farrar, “Self-Awareness to Being Watched and Socially Desirable Behavior: A Field Experiment on the Effect of Body-Worn Cameras on Police Use-of-Force,” (March 2013) Police Foundation <http://www.policefoundation.org/publication/self-awareness-to-being-watched-and-socially-desirable-behavior-a-field-experiment-on-the-effect-of-body-worn-cameras-on-police-use-of-force/> (accessed Feb. 9, 2016).

[13] Id.

[14] Matthew Feeney. “Body Camera Studies Aren’t Conclusive—Mandate Them Anyway,” (Sep. 28, 2015) Forbes <http://www.forbes.com/sites/matthewfeeney2/2015/09/28/body-camera-studies-arent-conclusive-mandate-them-anyway/#15b53f387407> (accessed on Feb. 9, 2016).

[15] Brenda Gazzar. “On body cameras, LAPD gets mixed review from civil-rights coalition,” (Nov. 10, 2015) Los Angeles Daily News <http://www.dailynews.com/government-and-politics/20151110/on-body-cameras-lapd-gets-mixed-review-from-civil-rights-coalition> (accessed Feb. 9, 2016).

[16] Dana Littlefield. “How San Diego County is dealing with the ‘tsunami of data’ from police body-worn cameras,” (Feb. 2, 2016) Los Angeles Times <http://www.latimes.com/local/crime/la-me-sd-police-body-cameras-20160202-story.html> (accessed Feb. 9, 2016)

[17] Id.

[18] Gov. Code §§ 6250 et seq.

[19] Gov. Code § 6254(f).

[20] Gov. Code § 6255(a).

[21] California State University, Fresno Assn., Inc. v. Superior Court of Fresno County (2001) 90 Cal.App.4th 810, 831.

[22] Gov. Code § 6252(e) and (g).

[23] Gov. Code § 6253(e); 6254.5.

[24] Gov. Code § 6254(f); Haynie v. Superior Court of Los Angeles County (2001) 26 Cal.4th 1061, 1071.

[25] Haynie, supra, at 1069­–70; American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 449, fn. 10.

[26] American Civil Liberties Union Foundation of Southern California v. Superior Court of Los Angeles County (2015) 236 Cal.App.4th 673 (not citeable; superseded by grant of review in 2015 Cal.LEXIS 9919 [S227106]).

[27] Id. at 685.

 [BH1]V -- he's noting a headnote here. What do we do when writers do this? We don't cite headnotes, right?

BH- since it’s not a direct quote, it’s okay. A little further down in the case at 814 says the same thing, so it’s okay. Technically, we don’t even need a cite since he’s using his own words.

 [VK2]Can you check with the author on this one, I don’t thing § 6253(e) is correct; I think it might be 6254(f).

 [BH3]V -- the opinion says it is "not citable." What do we do in this case? The article author isn't citing for a legal document, so I see no problem citing the case in an article about the point in general. But what do we usually do in this circumstance? Thanks. - B

BH: I don’t like these; look at what I did and then confirm with Laura.

 [VK4]In PB issues, we usually have a few graphics pointing the readers to the website, in this case, we can point readers to a previous Firewall article dealing with this case: https://www.cdaa.org/wp-content/uploads/FWspring2015.pdf

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