Issue Brief: Police Mobile Camera Footage as a Public Record

SAA Position

Footage from police mobile cameras, including body-worn cameras, dash-cams, and unmanned aerial vehicles, is a public record with informational and evidentiary value. Footage produced by police-operated cameras should be handled according to local, state, or federal records retention policies; managed in systems that ensure their authenticity; and made available to the public according to government records transparency and privacy laws. Records retention policies for law enforcement agencies should explicitly address camera footage in alignment with these principles.

This issue has taken on particular salience in recent years as a growing number of law enforcement agencies implement mobile camera programs. This trend is due in part to calls from Black Lives Matter, the Movement For Black Lives, and other community organizations to increase transparency of law enforcement agencies and ensure accountability when police use excessive force. The Society of American Archivists has a vested interest in developing and advocating for comprehensive policies to govern these records in the interest of serving the public good and affirming the importance of Black Lives.

In accordance with this position, SAA will:

• Support efforts to define police mobile camera footage as a public record under existing public records laws according to local, state, and federal statutes.
• Advocate for standardized practices of recording, processing, storing, and making accessible police mobile camera footage.
• Support comprehensive policies that ensure compliance with government records laws by private contractors that sell or maintain police mobile cameras and their attendant evidence management software.
• Advocate for retention and access policies that, while ensuring government transparency and accountability, protect the personal privacy rights of individuals being filmed, particularly those who are incidental to the investigation or recorded incident.
• Encourage SAA members engaged with law enforcement agencies, community organizations, and companies that manufacture and sell body cameras and evidence management systems to ensure that archival and records management best practices are considered when developing policies and procedures related to police mobile cameras.

The Issues

Police mobile camera video—recorded in the course of operations and preserved as evidence—falls under the professionally accepted definition of public records, i.e., any documentary materials, regardless of physical form or characteristics, made or received by a government entity in the conduct of public business and preserved (or appropriate for preservation) as evidence of the entity's organization, functions, policies, decisions, procedures, operations, or other activities, or because of the information contained therein. However, state laws diverge widely on the treatment of body camera recordings as public or open records.[1] As of April 2017, eighteen states and the District of Columbia have adopted regulations for handling police mobile camera data in accordance with public record laws. Although some of these states explicitly treat police mobile camera footage as a public record (subject to selected exemptions for confidentiality), other states consider such footage to be exempt from open records requests. This lack of consistent regulatory coverage highlights the need for clear guidance from archivists and records managers.

A 2016 joint report by the American Civil Liberties Union Foundation of Massachusetts and the University of California, Berkeley School of Law, notes that body-worn cameras increasingly are used by law enforcement officers to record their encounters with civilians.[2] A 2015 survey by the Associations of Major Cities Chiefs and Major County Sheriffs found that 95% of surveyed law enforcement agencies had already implemented body-worn cameras or were planning such programs.[3] This trend is attributed in large part to the Black Lives Matter movement, which has significantly raised public awareness of police conduct toward Black Americans and other marginalized groups. Mobile-camera footage provides important, albeit at times imperfect, documentation of situations that are often high-stress, emotionally charged encounters. By their very nature, such cameras provide evidence of a situation from a single, fixed point of view, one that does not always perfectly replicate what the recording officer actually sees.

The American Civil Liberties Union (ACLU) has advocated for the use of body-worn camera recordings to document and prosecute police misconduct, provide authoritative evidence in the examination of violent encounters between police and civilians, and diminish the need for juries and judges to rely on fallible eyewitness testimony.[4]  The ACLU also has recommended that jurors be allowed to consider whether a police department properly preserved body-worn camera footage. In May 2015, the Leadership Conference on Civil and Human Rights published the Civil Rights Principles on Body Worn Cameras.[5] These principles were endorsed and signed by 35 civil rights and social justice organizations, including the ACLU, Center for Media Justice, Data and Society Research Institute, Electronic Frontier Foundation, Lawyers’ Committee for Civil Rights Under Law, National Association for the Advancement of Colored People (NAACP), and Public Knowledge. According to these principles, law enforcement agencies should, for example: develop camera policies with public input; specify clear operational policies for recording, retention, and access; and make footage available to promote accountability with appropriate privacy safeguards in place. Within this context, records managers and archivists should play an active role in collaborating with policymakers, government agencies, and other stakeholders in meeting the complex records management challenges posed by mobile police video.

The ways in which these videos are understood and treated as records are of paramount concern to archivists, particularly with respect to preservation and access practices that may affect the evidentiary value and authenticity of mobile-camera footage. This issue resides at the nexus of SAA's core values and principles, including the organization’s commitment to ensuring transparency and accountability of government at all levels; ensuring the protection of citizens’ rights and personal privacy; making accessible evidence of the diverse and complex elements of the human experience; and preserving historical documentation for future generations. Archivists’ professional expertise and investment can help ensure the integrity of these records and assist in fostering transparency.

Regulations and statutes governing mobile-camera footage have failed to keep pace with the growth of programs that produce them. However, ad hoc policies and practices have emerged from the need to process, store, and access massive amounts of data in accordance with evidence management standards and protocols. Because this work requires significant investment in infrastructure, many law enforcement agencies have contracted with private companies to purchase mobile cameras and manage footage through proprietary evidence management software. Regulations and statutes should clearly define mobile-camera footage to be a public record within the context of state-specific public records law. Such statutes or regulations should dictate how these records are captured, stored, maintained, accessed, and destroyed. Additionally, such statutes or regulations should clearly outline the limitations for use by contractors of police body-camera footage and attendant data.

While acknowledging the evidentiary value of police-operated camera footage, SAA recognizes the tension between the public’s right to know and personal privacy concerns. Police-operated cameras capture deeply personal information and large amounts of footage that are incidental to any potential investigation. Law enforcement agencies should avoid the indiscriminate retention of personally identifiable information, including biometric data captured by mobile cameras. Data retention policies must balance the competing needs for citizen privacy and government transparency within practical, technical, and financial limitations.

In accordance with statutory privacy protections, manual review and redaction may be necessary before police mobile-camera footage can be released. Because this process is both expensive and time-consuming, it may contribute to significant backlogs in fulfilling public requests for footage. Law enforcement agencies should develop efficient policies and procedures for promptly reviewing and releasing or destroying footage in accordance with existing public records regulations.

[1] http://www.ncsl.org/research/civil-and-criminal-justice/body-worn-cameras-interactive-graphic.aspx

[2] http://aclum.org/wp-content/uploads/2016/11/ACLU_BodyCameras_11.21_final.pdf

[3] https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rvnT.EAJQwK4/v0

[4] http://aclum.org/wp-content/uploads/2016/11/ACLU_BodyCameras_11.21_final.pdf

[5] http://www.civilrights.org/press/2015/body-camera-principles.html

Additional Resources

American Civil Liberties Union Foundation of Massachusetts, "No Tape, No Testimony: How Courts Can Ensure the Responsible Use of Body Cameras," November 29, 2016. http://aclum.org/wpcontent/uploads/2016/11/ACLU_BodyCameras_11.21_final.pdf 

Bakst, Brian, and Ryan Foley. “For Police Body Cameras, Big Costs Loom in Storing Footage.” Washington Times February 6, 2015. http://www.washingtontimes.com/news/2015/feb/6/forpolice-body-cameras-big-costs-loom-in-storing-/

Brennan Center for Justice, "Police Body Cameras: Retention and Release," August 3, 2016. https://www.brennancenter.org/analysis/police-body-camera-policies-retention-and-release

Community Oriented Policing Services and Police Executive Research Forum, "Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned," 2014. https://ric-zaiinc.com/Publications/cops-p296-pub.pdf  

Electronic Frontier Foundation, “Surveillance Drones.” https://www.eff.org/issues/surveillancedrones 

Funk, McKenzie, "Should We See Everything a Cop Sees?" The New York Times Magazine, October 18, 2016. http://www.nytimes.com/2016/10/23/magazine/police-bodycameras.html?_r=1

Laperruque, Jake, “Should Police Bodycams Come With Facial Recognition Software?” Slate. November 22, 2016. http://www.slate.com/articles/technology/future_tense/2016/11/should_police_bodycams_come_With_facial_recognition_software.html  

The Leadership Conference on Civil and Human Rights, “Civil Rights, Privacy, and Media Groups Release Principles for Law Enforcement Body Worn Cameras,” May 15, 2015. http://www.civilrights.org/press/2015/body-cameraprinciples.html 

The Leadership Conference on Civil and Human Rights, "Police Body Worn Cameras: A Policy Scorecard," August 2016.
https://www.bwcscorecard.org/ 

National Conference of State Legislatures, “Body-Worn Camera Data and Open Records Laws,” April 1, 2017. 
http://www.ncsl.org/research/civil-and-criminal-justice/body-worn-cameras-interactive-graphic.aspx   

National Public Radio, “State Laws Restrict Release of Police Body Cam Footage,” All Things Considered, July 13, 2016.
http://www.npr.org/2016/07/13/485895793/state-laws-restrict-release-of-police-body-cam-footage

Richards, Sam, “Drones: law enforcement’s secret eye in the sky,” August 24, 2016. https://thinkprogress.org/drones-law-enforcements-secret-eye-in-the-sky-9eda68fb8bc#.x6jdcsadv  

Sledge, Matt and Hunter Stuart, “Cop Cams Will Change Policing. But Maybe Not the Way You Think,” Huffington Post, March 25, 2015. http://www.huffingtonpost.com/2015/03/25/policebody-cameras_n_6933474.html 

The Reporters Committee for Freedom of the Press. “Access to Policy Body-Worn Camera Video.” 2017.
http://rcfp.org/bodycams 

UCLA Department of Information Studies National Forum, “On the Record, All the Time,” August 17-19, 2016. https://is.gseis.ucla.edu/bodycams/ 

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Administration, “Body Worn Camera Toolkit.” https://www.bja.gov/bwc/ 

Urban Institute, “Police Body-Worn Camera Legislation Tracker.” http://apps.urban.org/features/body-camera-update/

WIRED, “Peter Gabriel: Tech can make video evidence a cornerstone of justice,” 2014 December 30.
https://www.wired.com/2014/12/peter-gabriel-witness-on-video-evidence/

All sites were accessed on June 24, 2017.

Approved by the SAA Council, November 2017.