I. Police Body Cameras: An Idea Whose Time Has Come
A. Across the country and here in New York, many are calling for police to wear body cameras.
President Obama recently allocated millions in federal funds to purchase wearable body cameras. 1 Hilary Clinton said that equipping police officers with body cameras will not only improve transparency and accountability, but that “it will help protect good people on both sides of the lens.” 2 Governor Cuomo said lawmakers should have a “comprehensive” discussion about improving the system and restoring public trust, including police cameras, law enforcement training and changes to the grand jury process. 3
In his State of the State address in January 2015, Governor Cuomo proposed a statewide commission on police and community relations, which would bring together minority leaders and law enforcement, and called for efforts to assist all police departments in the state to hire more minorities, and to fund more police equipment, including body cameras to record police interactions with civilians. 4
B. Filming interactions between the police and the public seems to have a “civilizing” effect.
Anecdotally and statistically, people behave better and their interactions are less confrontational when being filmed. 5 Nationally, police chiefs report “everyone is on their best behavior” when the cameras are on, and overwhelmingly report that their agencies experience a noticeable drop in complaints against officers after deploying body-worn cameras. 6 “Some body camera pilot programs have shown a decrease in both complaints against police officers and police use of force (88 percent and 60 percent respectively in Rialto, Calif.)” 7 In the Mesa, Arizona Police Department, it was reported that eight months after “camera deployment” during a pilot program, there were nearly three times more complaints against officers without cameras, 40% fewer total complaints for officers with cameras, and 75% fewer use of force complaints for officers with cameras. 8 One city police department publishes regular reports tallying the number of complaints against officers that are invalidated by body camera footage, providing a clear incentive for officers uncomfortable with being recorded on the job.” 9
C. Already, many police departments have implemented the use of police body cameras.
Survey research suggests that approximately one quarter of the country’s police departments are already using body cameras. 10 Many big city police forces, including Los Angeles and Washington, have begun testing, and in September of 2014 New York City Police Commissioner William J. Bratton reported that “[a] total of 60 cameras will be deployed in the coming months in five high-crime police precincts, one in each of the city’s five boroughs.” 11 The Wall Street Journal further reported that although no state mandates body worn devices yet, according to the National Conference of State Legislature, lawmakers in 29 states had introduced various body camera bills as of March, 2015.” 12
II. Important to have policies in place
“Before the cameras are even put in place, an array of policy issues must be discussed among police, attorneys and city officials. Someone must decide which types of interactions will be recorded, how long video will be retained and what footage can be released to the public.” 13 Philadelphia Police Commissioner Charles Ramsey indicated that “[b]ecause technology is ad-vancing faster than policy, it’s important that we keep having discussions about what these new tools mean for us.” 14 The United States Department of Justice reported, however, that of the 63 agencies it surveyed that use body-worn cameras, nearly one-third did not have a written policy governing usage. 15
A. Initial questions regarding when to film and how long to retain footage are fundamental to issues of public access and confidence in government and should be determined prior to implementation of police body cameras. 16
Some, like the American Civil Liberties Union (ACLU), contend that recordings should be accessed only in narrow circumstances; and should be utilized only with the right policies in place. “Cameras have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse. … but only if they are deployed within a framework of strong policies to ensure they protect the public without becoming yet another system for routine surveillance of the public, and maintain public confidence in the integrity of those privacy protections.” 17 In turn, as recently recommended by a Presidential Task Force, policies regarding use and maintenance should be required to be made available to embrace and sustain the added value. 18
B. Generation of real-time body camera footage will require additional resources to ensure adequate review prior to public disclosure.
It was reported that police executives agreed there are significant administrative costs involved in responding to requests from the public or the news media for body-worn camera videos. “When an agency receives a disclosure request, often under the Freedom of Information Act, officers or other department personnel must spend time reviewing videos to find the relevant footage, determining whether an exception to the presumption of disclosure applies, identifying portions that by law must be redacted, and performing the redaction process.” 19
In most states there is no limit on the volume of records that can be requested, and in the state of Washington, at least two body-camera programs were cancelled due to an anonymous request for all of the video generated. According to a report regarding the Baltimore Police Department, “[d]epartments with existing body-worn camera programs estimate that the average officer interaction video is thirteen (13) minutes long and, for every eight (8) minutes of video, it takes roughly thirty (30) minutes to review and redact.” While some agencies are mired in outdated hardware issues, and some are waiting to implement programs pending action by state legislators, at least one city will host a hackathon in which it will provide footage and issue a challenge to those who might have an automated solution for redacting and posting the video.”
C. Associated Costs
Although the initial cost of purchasing cameras may be covered by grants or one-time allocations, the long-term expense of maintaining cameras and licenses, plus data storage are a primary concern. “It’s the expense related to data storage – not the purchase of the cameras – that typically ends up being most costly for departments.” A comprehensive survey conducted in conjunction with a grant from the US Department of Justice revealed that 39 percent of the respondents that do not use body-worn cameras cited cost as a primary reason. 23
An additional and significant administrative cost, in terms of staff resources, involves the regular process of reviewing and categorizing videos. Regardless of whether there is a request to access, at the end of every shift, officers must typically label, or “tag,” videos as evidentiary or non-evidentiary. Evidentiary videos would require further categorization according to the type of incident captured in the footage (e.g., homicide, robbery, or traffic citation). This tagging process is critical for determining how a video will be used and how long it will be retained. 24
III. Public access to police body camera footage; the state of the law in New York
Although many state legislatures are considering new policies regarding access to recordings generated by police body cameras, 25 in New York police agencies may attempt to block access based on Civil Rights Law §50-a which makes confidential “[a]ll [police] personnel records used to evaluate performance toward continued employment or promotion….”26 Over the years, courts have construed this prohibition in a broad manner, to allow police to withhold everything from records of an officer’s involvement in a hit and run accident while off-duty 27 to information about police accrual and leave practices, in direct contravention of a ruling from the highest court. 28 Such provision would likely serve as the basis to deny access to police body camera video in its entirety. Accordingly, the Committee on Open Government has repeatedly advised that the statute be rescinded or at the very least, amended.
Were CRL §50-a not to apply, the Freedom of Information Law would provide sufficient protections for privacy and safety, and permit agencies to withhold those portions of the records that would interfere with an investigation or judicial proceedings. FOIL is based upon a presumption of access that requires agencies to make all records available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j). Redactions are permitted based on subdivision (b) when disclosure would constitute an unwarranted invasion of personal privacy, subdivision (f) when disclosure could endanger the life or safety of any person and/or subdivision (e) which permits an agency to withhold when disclosure would interfere with a law enforcement investigation or judicial proceedings, deprive a person of a fair trial, identify a confidential witness or reveal criminal investigative techniques or procedures that are not routine.
The Court of Appeals confirmed its general view of the intent of the Freedom of Information Law in Gould v. New York City Police Department, stating that:
“To ensure maximum access to government documents, the ‘exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption’ (Matter of Hanig v State of New York Dept. of Motor Vehicles, 79 NY2d 106, 109; see, Public Officers Law § 89  [b]). As this Court has stated, ‘[o]nly where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld’ (Matter of Fink v Lefkowitz, 47 NY2d 567, 571).” (89 NY2d 267, 275 ).
Just as significant, the Court in Gould repeatedly specified that a blanket denial of access to records is inconsistent with the requirements of the Freedom of Information Law. In that case, the New York City Police Department contended that complaint follow up reports could be withheld in their entirety on the ground that they fall within the exception regarding intra-agency materials, §87(2)(g). The Court, however, wrote that: “Petitioners contend that because the complaint follow-up reports contain factual data, the exemption does not justify complete nondisclosure of the reports. We agree” (id., 276), and stated as a general principle that “blanket exemptions for particular types of documents are inimical to FOIL's policy of open government” (id., 275). The Court also offered guidance to agencies and lower courts in determining rights of access and referred to several decisions it had previously rendered, stating that:
“…to invoke one of the exemptions of section 87 (2), the agency must articulate ‘particularized and specific justification’ for not disclosing requested documents (Matter of Fink v Lefkowitz, supra, 47 NY2d, at 571). If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera inspection of representative documents and order disclosure of all nonexempt, appropriately redacted material (see, Matter of Xerox Corp. v Town of Webster, 65 NY2d 131, 133; Matter of Farbman & Sons v New York City Health & Hosps. Corp., supra, 62 NY2d, at 83).” (Id.).
Based on the direction given by the Court of Appeals, and again, should it be determined that CRL §50-a does not apply, under FOIL agencies would be required to review recordings for the purpose of identifying those portions that might fall within the scope of one or more of the grounds for denial of access. As the Court stated later in the decision: “[i]ndeed, the Police Department is entitled to withhold complaint follow-up reports, or specific portions thereof, under any other applicable exemption, such as the law-enforcement exemption or the public-safety exemption, as long as the requisite particularized showing is made.” (Id., 277; emphasis added).
Depending on content of the video, any of the various exceptions to disclosure may apply. While some would argue that disclosure would never interfere with an ongoing investigation, 29 if disclosure would interfere with an investigation or deprive a person of a right to an impartial adjudication, the agency could withhold in whole or in part, again, depending on whether it could meet the burden of proving the harmful effects of disclosure.
FOIL further requires that agencies respond to requests for access within a reasonable time. If it is known that circumstances will prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.
From our perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and we point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that “it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible.” Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:
“...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase ‘public accountability wherever and whenever feasible’ therefore merely punctuates with explicitness what in any event is implicit” (Westchester News v. Kimball, 50 NY2d 575, 579, 430 NYS2d 574 ).
In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
“The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL” (Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
Typically, audio and visual recordings, like most records in New York, would be subject to public access depending on content. If they are accessible under FOIL, what is not immediately apparent is how police agencies would manage the time and effort necessary to review and possibly redact prior to disclosure. Some jurisdictions have already learned how challenging it is to keep up with the demand and associated costs, in some cases making the difficult decision to forego body cameras until adequate polices and resources are developed to meet access requirements under law.
Due to the discretionary nature of exceptions to access laws in many states, there are those that argue that, especially in highly charged situations, proactive disclosure may be preferable. 30 According to the Chief Operating Officer of the Seattle Police Department, Michael Wagers, the Department “is now pursuing technology that would allow the automatic online posting of most police video collected.” 31 While we may be a long way off from a system that automatically makes such determinations, what is important is to have a system in place that makes video available to the public in order to gain insight into government activities, while reassuring crime victims that calling for help won’t result in an invasion of privacy or somehow jeopardize an investigation.
It is our hope that police agencies in New York will avail themselves of technological advances, such as the use of body cameras in order to enhance police and community relations, to deter bad acts, and to check policy brutality; however, it is not known yet how the courts will construe the provisions of Civil Rights Law §50-a with respect to the footage generated. We strongly recommend that before implementing cameras and generating video, police agencies clarify whether such records will be accessible pursuant to FOIL. In our opinion it is time for strenuous consideration of this issue, the policies and procedures governing when and where to record, and how best to realistically address access to such valuable records.
1 Sink, Justin, “Obama to Provide Funding for 50,000 Police Body Cameras”, thehill.com, December 1, 2014 (http://thehill.com/homenews/administration/225583-obama-to-provide-funding-for-50000-police-body-cameras).
2 Moore, Martha T., USA Today, April 29, 2015 (http://www.usatoday.com/story/news/politics/elections/2015/04/29/hillary-clinton-body-cameras-baltimore/26569575).
3 The Associated Press, North Country Public Radio, December 5, 2014 (http://www.northcountrypublicradio.org/news/story/26831/20141205/cuomo-ny-will-mull-police-training-body-cameras).
4 Bredderman, Will, “Fairness for All: Cuomo Seeks Criminal Justice and Prison Reform”, Observer News, January 21, 2015 (http://observer.com/2015/01/fairness-for-all-cuomo-seeks-criminal-justice-and-prison-reform/).
5 Maciag, Mike, “What We Can Learn From the Police That Pioneered Body Cameras”, Governing, April 13, 2015, page 3 (http://www.governing.com/topics/public-justice-safety/gov-body-cameras-chesapeake-virginia.html); Wood, Colin, “Anonymous ‘Requester’ Turns Police body Camera Programs Upside Down”, Government Technology, November 25, 2014, pages 3, 4 (http://www.govtech.com/public-safety/Anonymous-Requester-Turns-Police-Body-Camera-Programs-Upside-Down.html).
6 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, pages 5, 6.
7 McIntosh, Toby and Harper, Lauren, “Backlash Develops Over Release of Body Cam Footage”, FreedomInfo.org, February 26, 2015, page 1 (http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/).
8 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 6.
9 Maciag, Mike, “What We Can Learn From the Police That Pioneered Body Cameras”, Governing, April 13, 2015, page 1, 2 (http://www.governing.com/topics/public-justice-safety/gov-body-cameras-chesapeake-virginia.html).
10 Stanley, Jay, ACLU Senior Policy Analyst, “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All”, March 2015, page 1 (https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all).
11 Goodman, J. David, “New York Police Officers to Start Using Body Cameras in a Pilot Program”, New York Times, September 4, 2014 (http://www.nytimes.com/2014/09/05/nyregion/new-york-police-officers-to-begin-wearing-body-cameras-in-pilot-program.html?_r=0).
12 Maciag, Mike, “What We Can Learn From the Police That Pioneered Body Cameras”, Governing, April 13, 2015, page 1 (http://www.governing.com/topics/public-justice-safety/gov-body-cameras-chesapeake-virginia.html).
13 Maciag, Mike, “What We Can Learn From the Police That Pioneered Body Cameras”, Governing, April 13, 2015, page 2 (http://www.governing.com/topics/public-justice-safety/gov-body-cameras-chesapeake-virginia.html).
14 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 1.
15 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 2.
16 Stanley, Jay, ACLU Senior Policy Analyst, “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All”, March, 2015, page 8 (https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all); McIntosh, Toby and Harper, Lauren, “Backlash Develops Over Release of Body Cam Footage”, FreedomInfo.org, February 26, 2015, page 2 (http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/).
17 Stanley, Jay, ACLU Senior Policy Analyst, “Police Body-Mounted Cameras: With Right Policies in Place, a Win For All”, March, 2015, page 2 (https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all).
18 The President’s Task Force on 21st Century Policing, 1.3.1 Action Item, March, 2015 (http://www.cops.usdoj.gov/pdf/taskforce/Interim_TF_Report.pdf).
19Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 33.
20 McIntosh, Toby and Harper, Lauren, “Backlash Develops Over Release of Body Cam Footage”, FreedomInfo.org, February 26, 2015, page 14 (http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/); see also, Jackson, William, “Police body cameras are only one part of the equation”, GCN.com, December 19, 2014. http://gcn.com/blogs/cybereye/2014/12/police-body-cam-video-storage.aspx
21 Wood, Colin, “Anonymous ‘Requester’ Turns Police body Camera Programs Upside Down”, Governing, November 25, 2014, page 4 (http://www.govtech.com/public-safety/Anonymous-Requester-Turns-Police-Body-Camera-Programs-Upside-Down.html).
22 Maciag, Mike, “What We Can Learn From the Police That Pioneered Body Cameras”, Governing, April 13, 2015 (http://www.governing.com/topics/public-justice-safety/gov-body-cameras-chesapeake-virginia.html).
23 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 31.
24 Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 32.
25 McIntosh, “Pace on Body Camera Bills Slow; Restrictions Advance”, FreedomInfo.org, May 14, 2015 (http://www.freedominfo.org/2015/05/pace-on-body-camera-bills-slow-restrictions-advance/).
26 In its entirety, CRL §50-a makes confidential all such records with respect to police officers, correction officers, paid fire-fighters, paid fire-fighter/paramedics, and peace officers.
27 Hearst v New York State Police, 109 AD3d 32, 966 NYS2d 557 (3rd Dept. 2013).
28 Stuart v Department of Community and Correctional Services, Supreme Court, Chemung County, August 30, 2001 (permitted deletion of names of officers from accrual and leave statements); Capital Newspapers v Burns, 67 NY2d 562, 505 NYS2d 576 (1986)(required disclosure of lost time reports that include days and dates of sick leave used).
29 David Marburger, a Cleveland, Ohio, First Amendment attorney, privacy expert and author of the FOIA guide “Access to Attitude” says that the law enforcement exception “should not normally apply because body cams are not being used to investigate a specific crime and the officer is not directing the camera in any conscious way. Rather, their use is more or less automatic. ‘If the footage existed prior to the investigation or is automatically running regardless of whether the cop is investigating crime, the fact that the footage might be grabbed by investigators later when investigating doesn’t make it exempt; it is not exempt,’ according to Marbuger.” McIntosh, Toby and Harper, Lauren, “Backlash Develops Over Release of Body Cam Footage”, FreedomInfo.org, February 26, 2015, page 8 (http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/).
30“Under many state FOI laws, voluntary release is permitted, a point also being added to many body cam policies because in highly charge situations, disclosure may be the preferred course.” McIntosh, Toby and Harper, Lauren, “Backlash Develops Over Release of Body Cam Footage”, FreedomInfo.org, February 26, 2015, page 8 (http://www.freedominfo.org/2015/02/backlash-develops-over-release-of-body-cam-footage/).
31 Wood, Colin, “Anonymous ‘Requester’ Turns Police Body Camera Programs Upside Down”, Governing, November 25, 2014, page 4 (http://www.govtech.com/public-safety/Anonymous-Requester-Turns-Police-Body-Camera-Programs-Upside-Down.html); Police Executive Research Forum and the US Department of Justice Office of Community Oriented Policing Services, “Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned,” 2014, page 47.