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Q&A: Police video & the law

A police shooting of a civilian in Charlotte that was caught on video by dashboard and body cameras has raised questions about how the current Public Records Law and a new revision that takes effect Oct. 1 apply.  We try to provide some answers. 

Q: Are police videos public records?

A: The Public Records Law that is in effect until the beginning of October defines public records as "all documents... films, sound recordings ... or other tapes ... made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." In other words, videos made by law enforcement fall within the definition of a public record and should be released unless an exemption applies.   

Q: Do any exemptions to the Public Records Act apply?

A: The current public records law does not mention police video and does not provide a direct exemption for it. Our Supreme Court held in News & Observer v. Poole "that in the absence of clear statutory exemption or exception, documents falling within the definition of 'public records' in the Public Records Act must be made available for inspection."  

But even though there is not a specific exemption for video under the current law, there are two exemptions that are frequently cited by law enforcement agencies in refusing to release videos to the public. Those are the law enforcement and personnel exemptions. 

Q: Does the law enforcement exemption apply to police video?

A: It's unclear to what extent to the law enforcement exemption applies, but it likely applies to some video.

North Carolina's law enforcement exemption is quite broad and can be found at NCGS 132-1.4  It removes from the public record all records or information that is "compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law." 

To determine whether or not that applies to police video you have to determine the purpose of the camera's deployment. In many instances it is passively recording and is not being used to investigate or prevent a specific crime. In some instances, though, such as many DWI investigations, cameras are used to investigate a specific crime and the exemption may apply. 

Only one North Carolina court has looked at the issue. In 2009 several media outlets sought access to a dashboard camera recording of the moments leading up to a fatal encounter between an Archdale police officer and a UNC Chapel Hill student. Superior Court Judge Bradley Long ruled that whatever the purpose of the camera, that in that particular case it was an investigative record. 

Because that ruling was not appealed to the N.C. Court of Appeals, the case did not set a precedent that would bind other courts. 

In the absence of an appellate court ruling, it appears that in some instances the law enforcement exemption may apply to police video, but that in many instances it will not.

Several law enforcement agencies in North Carolina treat dash camera videos as public records and will release them on request, while many others claim that as a class they are exempt under the law enforcement exemption. 

Q: Aren't there records that law enforcement must disclose? 

A: Yes. There is an exception to the law enforcement exemption. It is found at NCGS 132-1.4(C) It requires law enforcement to release basic information about incidents that they investigate. It includes things such as the name, age and address of people who are charged with crimes, what crimes they've been charged with, and when and where incidents occur and what kind of incident it was. 

There is one exception that is particularly relevant to police video. NCGS 132-1.4(C)(3) requires law enforcement to disclose "the circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest." 

In many instances, body camera and dash camera video will be law enforcement's best records of those circumstances surrounding an arrest. 

Q: Even if the law enforcement exemption applies, can video be released? 

A: Yes. The law enforcement exemption does not require withholding. A law enforcement agency in North Carolina can choose to release information that it could withhold under the Public Records Act. 

Q: Does the personnel exemption apply to police video?

A: It's not likely, but possible. 

There are 10 different personnel statutes in state law governing the keeping of records about government employees. They're all fairly similar, but there are separate statues depending on the type of government. There's one each for municipal employees, county employees, and state employees

The personnel statutes put limitations on what information about a particular employee may be released. It protects information "gathered by" a government agency with respect to a particular employee. The N.C. Court of Appeals in News Reporter v. Columbus County held that "[w]hether a document is part of a 'personnel file,' within the meaning of (the county employee personnel statute), depends upon the nature of the document and not upon where the document has been filed."

That's important because it requires a review of why the document was created. Simply placing a document in a personnel file or using a document for personnel review does not automatically exempt it. 

In the case of body camera video in particular, many city and town councils in adopting policies allowing their use or authorizing expenditures for their purchase touted the new technology as a way to increase transparency and accountability to the public. If that is their purpose, then they would not be subject to the personnel exemption, which would hinder building transparency and accountability. 

But the School of Government has argued that the personnel statutes may apply, and many law enforcement agencies across the state have adopted that viewpoint. 

Q: Even if the personnel exemption applies, can video be released?

A: Yes. The personnel statutes have provisions that allow release of confidential personnel information when it is "essential to maintaining public confidence in the administration ..." With a city government, the council is empowered to release that information in concurrence with the city manager. At the county level the decision is up to county commissioners and the county manager. This provision was used by the Greensboro City Council in May 2016 to release body camera video that captured a police officer's shooting of an armed woman and again in September to release video of an officer using excessive force on a young man. 

Q: So what is changing on Oct. 1?

A: At the request of several municipal governments, the General Assembly took up a bill this year to clarify the law on police videos and public records. The law primarily does four things. 1) It declares that police video is not subject to the personnel statutes. 2) It removes all police video, including body camera, dash camera and surveillance video, from the public record. 3) It creates a limited right of access for people who appear in videos to see the video, and an appeal process should they be denied. 4) It requires a court order for release of any video, and provides courts with some guidance as to when a video can be released. 

Q: Will the new law cover videos recorded before Oct. 1?

A: Probably. The law is silent on whether or not it applies to videos made prior to Oct. 1. It is likely that any requests for video made after Oct. 1 will be subject to the new law. 

Q: What rights do people who appear in the video have under the new law?

A: The law requires people who want to see videos in which they appear to make a written request to the head law enforcement officer of the agency, such as the chief or sheriff, that captured the video. The person making the request will have to provide the approximate time and date that the encounter occurred and provide some additional information so that the law enforcement agency can locate the record. People who are in the videos can also have a personal representative view the video on their behalf. 

The head law enforcement officer must determine whether or not the video will be disclosed within three days. The officer is given some leeway to restrict access if it would interfere with an active investigation, unduly invade someones privacy, identify a confidential informant, harm someones reputation, or create a threat to a fair trial. 

If the law enforcement officer denies the request or doesn't respond within three days, the person has the right to petition a superior court judge to gain access. 

Those rules are only for disclosure, though. To gain release of the video so they could show it to others, the person would have to ask a superior court judge for an order. People who appear in the video are to be given an expedited review when they make such a request. 

Q: What rights does the general public have under the new law? 

A: Anyone may apply for a court order asking for a video to be released. Unlike the special provision for people who appear in the video, though, there is no expedited review. 

When considering whether or not to release the video, the court is to consider whether there is a "compelling public interest" in releasing it. The court also has to consider whether releasing it would identify a confidential informant, harm someone's reputation, hinder future court proceedings, or interfere with an ongoing investigation. 

Q: Can the police department release video under the new law? 

A: No. Only a court will be able to determine whether or not a video should be released. Even if the police want - or need - to release a video to the public, they will have to obtain a court order to do so. 

Q: Will a city council be able to release video under the new law?

A: No. Only a court will be able to determine whether or not a video should be released. Even if the council wants to release a video to the public, they will have to obtain a court order. 

Jonathan Jones,
Staff
9/23/2016 7:50 AM