Admittedly, the best thing the Lege did on the topic this year was to authorize $10 million in grants for police departments to purchase body cams, reminiscent of a $18 million bond issue in 2003 for in-car dashcams which your correspondent helped push for back in the day.
But the dashcam legislation - which was really part of a larger bill defining and banning racial profiling - did not include the sort of closed records provision in Texas bodycam bill, SB 158, which to me go too far. ACLU of Texas and the NAACP reportedly negotiated these provisions. With all due respect to my friends at those groups, if they really agreed to these closed records provisions then frankly they got rolled.
Under Texas' Public Information Act, police already don't have to release video unless there's a conviction or deferred adjudication in a case. So there exists plenty of discretion to protect privacy in situations where there's no public interest in disclosing the footage.
At first glance, SB 158 appears to include open records provisions but, on closer inspection, imposed new, needless restrictions. (See text.) For example:
A member of the public is required to provide the following information when submitting a written request to a law enforcement agency for information recorded by a body worn camera:So if you don't know all of those details, you can't access the records. Say you witnessed an event but didn't know the people involved? Can't get the records. Say you know who was involved and the date but not the "specific location"? Can't get the records. Moreover, this would prevent research projects using the video because one could not, for example, get all video for a certain time period if you didn't have the specifics stated above regarding each police encounter.
(1) the date and approximate time of the recording;
(2) the specific location where the recording occurred; and
(3) the name of one or more persons known to be a subject of the recording.
I really can't think of another brand of open records request where the requester must know so much detail before filing the request. Typically one files open records requests to get that sort of detail, requiring folks to have it up front is an unnecessary barrier.
Another loophole you can drive a truck through: You can't get bodycam videos from misdemeanor traffic stops under an open records request without written permission from the person being recorded, even though about 44% of police encounters with the public are at traffic stops. From the bill:
A law enforcement agency may not release any portion of a recording made in a private space, or of a recording involving the investigation of conduct that constitutes a misdemeanor punishable by fine only and does not result in arrest, without written authorization from the person who is the subject of that portion of the recording or, if the person is deceased, from the person's authorized representative.As ESPN's Stephen A. Smith might say, that's asinine, assiten, asseleven ...
Consider: Dashcam video is still public at traffic stops but the bodycam video is not? What possibly justifies that distinction? Drivers in public don't have a legal expectation of privacy, so to me this is more about protecting the cop from accountability than enforcing privacy rights.
Ditto for the bit about a "private space." Once you let a cop in your door, you've lost any reasonable expectation of privacy regarding what they see.
And why should open records laws be different for Class C misdemeanors than other offenses?
These are awful provisions from a transparency perspective and, on the whole, I'd have rather no money have been allocated for camera grants at all if the tradeoff was scuttling open records access. Large departments are acquiring body cams anyway and there's also federal money; I don't think this trend is dependent on a small pot of state grant money.
These opacity provisions should be revisited by the Lege in 2017; they're seriously screwed up.