Saturday, July 11, 2015

Bodycam legislation closed too many records

Texas' new legislation related to police body cameras has been mostly praised in the media, but Grits must admit I'm not a fan. Your correspondent didn't have the bandwidth to track the legislation this year, but if I had I've have ardently opposed the version that passed.

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:
     (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.
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.

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.


Anonymous said...

Bemoan the legislation as you see fit but it is a step forward. I was told by a state legislator that the misdemeanor provision was put in for cost and because it would be yet another open season on the public by media (as on a DWI stop, speeding, or whatever), including state legislators or public officials such as happened with a certain Austin official.

The next few years will include a lot of trial and error on the part of police employees, their agencies, prosecutors and defense to fine tune the specifics. One veteran officer that spoke highly in favor of the legislation with members of the legislature told them the body cams will potentially save a great deal of money in the long run as defendants and their counsel lose any benefit of the doubt in many cases, the number of false complaints would save his agency untold hours of investigation expenses, and his county's DA worked with him on setting the policies they will use in prosecution, the bulk of footage going to benefit police. If it helped weed out the few bad apples from his department, that would simply be a bonus he could live with and smile about.

So, as predicted, the wheels are set in motion to use body cams to catch and prosecute criminals police encounter, not directed solely at the police themselves as some had suggested should be the case. I'd just like to see the policies the different agencies are going to use because none of them seems forthcoming outside of their local DA's offices.

Anonymous said...

Since Morton, the bodycam video is discoverable by the defendant if it is material to any criminal case, even a class C. The defendant does not need to follow the open record rules, simply request the bodycam video from every dispatched officer.

And how to know which officers were dispatched? The CAD report, which is of course also requested by the defendant.

Speaking of the CAD report, non-Morton information seekers could do a PIA request on the CAD and incident reports and use the information they contain to back-door the three bits of information to make a proper bodycam request.

Gritsforbreakfast said...

"the wheels are set in motion to use body cams"

Of course, nothing stopped them from using body cams before.

Anonymous said...

Grits, sure there was; money! Until the push for body cameras as a means of "catching bad cops" was shoved down our collective throats, the cameras cost over 10x what they cost now and were much more prone to failure in bad weather just as they were lousy at night without an external light source. Once the narrative was naively sold as to how such cameras were going to catch bad cops, the demand for them skyrocketed. Yet given how clear misconduct caught on such devices has not resulted in wholesale changes or attitudes, I get the impression they will be another boondoggle for the most part. In Texas at least, major policing agencies are even still refusing to provide copies of their policies of usage to the media or public as though they were state secrets.

Anon 7/11/2015 12:34:00 PM, even if the cops keep their cameras on for the event, the growing likelihood being that they do not and policy allows such, the increase in a phenomenon known as "checking by while in service" is also taking place. The one officer dispatched on record would be found by your method while the 4 or 5 others would not, an official report not likely to include most such officers if the cop writes it during a later break as is increasingly typical too (since he will refer to his dispatch records as well, those records not showing anyone else).

There are easier ways of obtaining the footage in some jurisdictions but when an agency won't even provide their basic policies in place for you outside a judicial demand, good luck in getting what you want when you need it. The chances something was misfiled, lost until trial, or found defective seem to increase all the time.

Gritsforbreakfast said...

Federal grants are now available and the big departments were already ponying up out of asset forfeiture, etc.. I said I was in favor of the money, it just wasn't worth the tradeoff in transparency.

Anonymous said...

Question: All the grants available in Texas seem to cover a portion of the initial outlay in equipment but nothing further. Do any cover the server space, storage of video, and need for additional manpower to handle requests and routine spot checking of employees? The PIO for Houston and Harris County tell me no, the grants only cover gear, but maybe others have a different experience?

Anonymous said...

In Travis the CAD report lists every dispatched officer. None of this "one officer dispatched on record" nonsense. I've seen 60+ page CAD reports when SWAT got involved. Also the Police Department of the University of Texas at Austin has been using bodycam equipment since at least 2013.

Gritsforbreakfast said...

@ 7:28, gear only as far as I've seen when the press covers grant awards. OTOH, these days storage is pretty cheap. The dashcam bonds only paid for equipment, and back in 2003 they had to store videotape.