With Body Cam Bills and FOI Laws on Collision Course, Several Reminders to Lawmakers

By Amanda Palmeira

Police body camera legislation and state freedom of information laws are on a collision course.

With 34 states considering legislation to address body cameras for law enforcement last year, questions about the public’s accessibility to the footage captured by those cameras still abound. Yale Law School’s Media Freedom and Information Access Clinic recently argued, however, that it’s imperative that such footage be considered public under each state’s respective FOI law. (See a previous NEFAC post on the topic here.)

In a report released last month, the clinic addressed the problems most likely to occur with body camera legislation and gave guidance on how lawmakers can best proceed. In addition to highlighting Connecticut as a case study in “appropriately protective access laws,” the clinic’s report made four main arguments:

• Transparency is critical to the legitimacy and success of police body cameras.
• States should adopt a presumption of disclosure.
• Existing exemptions to FOI laws often already address law enforcement concerns about disclosure.
• States should not and often need not create additional privacy exemptions.

Transparency is Critical

Access to public records allows citizens and the media to be government watchdogs. Public oversight of law enforcement, according to the report, is perhaps the greatest watchdog responsibility. Police officers have the tools of arrest, imprisonment, and even death at their disposal, and so transparency is particularly important to maintain public confidence and continued legitimacy.

“Body cam footage can dramatically improve accountability within government,” the report states. “Accordingly, public access to this footage is necessary to realize the advantages of enhanced public awareness.”

Presumption of Disclosure

The report describes the federal Freedom of Information Act as a model that states can use when crafting their own FOI legislation. 

“The Freedom of Information Act (FOIA) makes public records broadly available to citizens, journalists, and policymakers,” the report states. “Video footage from police body cams should be treated according to this expansive access standard. Creating new exemptions to the access privileges conferred by FOIA risks undermining the goal of public transparency.”

Existing Exemptions Often Adequate

The report addresses the commonly used FOI investigatory exemption which, generally, allows law enforcement to withhold records that relate to law enforcement proceedings or ongoing investigations. The report acknowledges that many state laws allow for this exemption — or others like it — and any additional exemptions would be excessive.

“Defining body cam footage as a public record does not mean that all body cam footage will — or should — be disclosed,” the report states. “Existing FOI laws already enable agencies to withhold records that could jeopardize investigations or personal privacy. The apparent novelty of body cams should not obscure the fact that legislatures and courts have already grappled with these issues in cases involving similarly sensitive records and have laid down well-established principles.”

The report also explained that the federal FOIA, and nearly all state FOI laws, exempt records that would reveal identities of confidential informants or other third parties, and such an exemption would likely also apply to body camera footage.

Privacy Often Already Protected

States should not, and often need not, adopt additional exemptions to FOI laws to account for privacy concerns associated with police body cameras. Disclosure of the footage is not automatic, but usually requires courts to balance the public interest in disclosure against the agency’s reason for withholding it.

“State legislatures are particularly concerned with footage shot in homes, hospitals, or schools, as well as footage depicting juveniles, survivors of sexual assault, and other victims,” according to the report. “But existing statutes and case law already protect the privacy interests of victims, certain third parties, and police officers in many states.”

Examples of such protections are exceptions made for medical records, personnel information on police officers, and law enforcement records that would lead to “unwarranted invasion of personal privacy” upon disclosure.

Amanda is a second-year law student at New England Law | Boston and was a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.