How Long Should Police Be Allowed to Withhold Video Footage?

Body cameras are becoming more common on police forces, but state policies don’t agree on when footage can be made public.

Image REUTERS/Frank Polich
REUTERS/Frank Polich

Government agencies are supposed to fulfill open-record requests within a few days in many states, unless there’s a compelling reason not to. Police usually are excused from fulfilling these requests if they plead that the release of certain information could compromise an open investigation. (New Hampshire is currently the only state that doesn’t give the police that option.)  

Chicago residents are not on board with their police department’s ability to block access to footage, though. They’ve been especially resentful of such measures since police took well over a year to publicize video of an officer shooting an unarmed 17-year-old named Laquan McDonald 16 times, killing him. That footage was captured by a camera on a police car’s dashboard, and the deployment of such “police cams” is expanding in Chicago and many other cities.

One problem with this new equipment, however, is that the footage it captures too often falls into a fuzzy area in terms of who can access it, when, how, and why. Making police officers wear cameras on their bodies (or on their cars) is supposed to boost trust and accountability. However, state laws tend to support the police in denying the public release of video and other records. The expansion of police cam usage will mean little if the public can’t see what’s being recorded.

Some cities and states are taking steps to clarify policies on how and when the public can see such content. According to a new Urban Institute report, nine states have passed laws dictating how police cam footage can be used, and 16 more have similar legislation pending. The report also notes that police departments are lately having to develop their own guidelines, for better or worse, on police cam usage. This is what Kerry Condon, president of the Anaheim (Florida) Police Association did for its police department.  

“Right now, until a state policy comes into effect, every city or municipality has free reign on how they want to create their own policy,” said Condon in the report.

The rollout of such policies across the country has been a bit muddled, sometimes coming into conflict with state privacy laws. For example, in Pennsylvania, you can’t record inside a person’s house without their consent, which means a Philadelphia or Pittsburgh officer would have to cut their camera off before entering a residence. No such law exists, fortunately, in Louisiana. Otherwise, the New Orleans officer who surreptitiously video-recorded a 2012 drug sting that resulted in a cop killing an unarmed man may have never seen light of day (as the New Orleans police department hoped it wouldn’t).

Seattle’s police department has encouraged transparency by streaming its police officers’ body cam footage on YouTube. But the stream is so blurry that a viewer can barely make out what’s happening. Check this sample:

Chicago is struggling right now with what kind of reforms it should institute for its police force. Illinois has a law stating that any officer wearing a body cam must have it on at all times when carrying out any law enforcement activity, according to the Urban Institute. Meanwhile, state laws also allow the police to withhold footage from the public, except in special circumstances. In light of the Laquan McDonald killing, Chicago Mayor Rahm Emanuel was forced to change that last guideline for the city’s police department. Following the recommendation of the Police Accountability Task Force he pulled together in December, such footage is now supposed to be made public within 60 days.

Journalists and advocates who’ve been fighting Emanuel and the Chicago police department over its opaque policies were hoping for a change that would allow videos to be released within two weeks. Illinois Attorney General Lisa Madigan told DNAInfoChicago blogger Mark Konkol that the time period for releasing such videos should be five days, in alignment with the state’s open records law.

Illinois lawmakers are currently considering legislation that would require a police department to make its case in court if it wanted to deny a FOIA request for footage, and have a judge determine whether it should be exempted.

The Leadership Conference on Civil Rights weighed in on this in its “Civil Rights Principles on Body Worn Cameras” report, released last May. Its recommendation:

Make footage available to promote accountability with appropriate privacy safeguards in place. At a minimum: (1) footage that captures police use of force should be made available to the public and press upon request, and (2) upon request, footage should be made available in a timely manner to any filmed subject seeking to file a complaint, to criminal defendants, and to the next-of-kin of anyone whose death is related to the events captured on video. Departments must consider individual privacy concerns before making footage available to broad audiences.

There are critics of police cams who question whether they can produce the kind of accountability proponents promise. Those questions can only be answered if the resulting video is available to the people who police are accountable to. If police video content was unimportant, departments likely wouldn’t be fighting so hard to keep their behavior—especially potentially criminal behavioroff camera.

“It’s a challenging public policy balancing act,” says Urban Institute Justice Policy Center Director Nancy La Vigne in its police cam report. “On one hand, it’s important to safeguard the privacy of people captured on camera, including children, witnesses, and bystanders. On the other hand, the main purpose of body cameras is to enhance transparency. The good news is that state legislators are quickly refining the legal framework surrounding body-worn cameras, hopefully in a way that serves both interests.”

About the Author

  • Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.