by Kevin Bliss
Law enforcement agencies are being criticized because they routinely refuse to release footage from body cams and police vehicle dashboard cams. They cite ongoing investigations, sensitive information, or exemption under the Freedom of Information Act (“FOIA”) as confidential personnel records.
Public rights advocates contend that the millions of dollars spent on equipping officers and vehicles with devices capable of recording encounters for the sake of openness and accountability have been circumvented by the agencies they are supposed to monitor.
Departments release many video accounts of police performing actions that put them in a positive light, such as rescuing people from fires, accidents, and other dangerous situations, but those actions that are controversial or may depict episodes of police brutality are more difficult to obtain.
The Associated Press used Sunshine Week, an annual celebration of open government, to file over 20 requests for information on use-of-force situations in several states. Law enforcement did not release one video that had not already been publicly released. Most cited FOIA exemptions due to ongoing investigations.
Chad Marlow, body-camera law expert at the American Civil Liberties Union, believes that the exemptions are being misapplied. Footage of officer-involved shootings is being suppressed for reasons of not tipping off suspects or revealing evidence obtained when the true focus should be the protocols the officer followed in the shooting. “It is for that reason that the investigative records exemption literally makes no sense and should have no place when it comes to police body camera footage. We didn’t know that would end up being the get-out-of-FOIA free card for police departments, but it certainly has turned into that,” stated Marlow.
Although classified as public record, prosecutors and police officials have the discretion as to when videos are released. Authorities state that they do not want witness memories to be tainted or to incite protests over an out-of-context snippet. Many states even require a court order to obtain police footage or refuse release if the video shows private homes, hospitals, or juveniles.
New York City’s police union filed suit against the release of body camera footage because it was considered confidential personnel records. Winning the case, the city stopped releasing all footage until an appeals court overturned the verdict, stating it “would defeat the purpose of the body-worn-camera program.”
California is one of the only states that has maintained immediate transparency. All videos are required to be released to the public within 30 days of a major incident or justification must be supplied.
Marlow said, “The decision about whether footage is being released or not is being dominated by the group that is supposed to be watched. When that happens, police body cameras go from being a tool for transparency and accountability into a propaganda tool.”
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