With the recent number of Officer Involved Shootings in Spokane I thought for sure the Spokesman Review, which has the largest circulation in the area, would do a story on the new Washington State Public Records Act Law relating to the public release of Body Camera Video. For some reason even though the new law has been brought to their attention a number of times, and it does have a direct effect on law enforcement transparency they have chosen not to cover it…so I will by hitting some of the “Highlights” of the new law.
Somewhat ironically on April Fool’s Day 2016 Governor Jay Inslee approved Engrossed House Bill 2362 which becomes effective June 9th,2016.
The new law was heavily backed by Washington State Law Enforcement and Local Governments, as we break it down you will be able to see why. Keep in mind that Washington State DOES NOT have a law covering Law Enforcement use of Body Cameras and there has been political battle after battle trying to implement a Body Camera Law. This new law was a backdoor approach by law enforcement and local government to curtail transparency…and it will work, up until there is a court challenge to the Washington State Supreme Court.
This new law is in direct response to the answers the Washington State Attorney General gave to the questions I prepared for State Senator Andy Billig to present to him, and specifically this question and answer.
- What legal standards or rules of evidence establish the requirements for preservation of intercepted private conversations or video evidence making such evidence available in its original format for a citizen seeking damages under RCW 9.73.030?
Brief Answer: In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Record retention schedules would also govern how long a recording must be kept. Recordings and records about the recordings would be subject to discovery, as well as the Public Records Act and its exemptions. In establishing body camera systems, agencies should therefore give significant thought to how to categorize and store recordings.
Long Answer: 4. What legal standards or rules of evidence establish the requirements for preservation of intercepted private conversations or video evidence making such evidence available in its original format for a citizen seeking damages under RCW 9.73.030?
The Privacy Act contains some provisions related to retention and disclosure of recordings covered by the Act. All communications recorded pursuant to the Privacy Act’s warrant exception in RCW 9.73.090(2) must be retained “for as long as any crime may be charged based on the events or communications or conversations recorded.” Because most body camera videos would not likely be made pursuant to the warrant exception, however, this provision would rarely apply to such videos. Similarly, as to video recordings made by cameras mounted in police vehicles and corresponding audio recordings, it is a misdemeanor to “knowingly alter , erase, or wrongfully disclose any [such] recording in violation of RCW 9.73.090(1)(c)[.]” RCW 9.73.080(2).
That said, video recordings made by police body-mounted cameras would qualify as public records. As such, the recordings must be retained according to the public entity’s applicable record retention schedule. See Washington State Archives, Law Enforcement Records Retention Schedule (Jan. 2013) (Schedule), available at http://www.sos.wa.gov/_ assets/archives/RecordsManagement/Law_Enforcement_RRS_v6.%201_Jan_2013.pdf. The retention schedule for law enforcement agencies addresses recordings from mobile units, which
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are retained according to whether the recording captures an incident likely to lead to prosecution or litigation. Schedule at 50. Recordings that do not capture such incidents must be retained for 90 days, while recordings capturing such incidents must be retained until the matter is resolved or until all appeals are exhausted. Schedule at 50.
Law enforcement agencies must also comply with the requirement that records relevant to litigation or reasonably anticipated litigation must be preserved until the litigation is complete. See, e.g., Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006); Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003). Of course, to the extent that recordings become evidence in a criminal case, they should be treated according to the same safeguards that govern any other evidence in a criminal case.
With regard to disclosure, recordings and records about recordings from police cameras are subject to both the Public Records Act and discovery. See generally Fisher Broadcasting–Seattle LLC v. City of Seattle, 180 Wn.2d 515, 326 P.3d 688 (2014). In establishing body camera systems, agencies should therefore give significant thought to how to categorize and store recordings. Restrictions on public disclosure of investigative records would apply to the extent that a recording meets the requirements of that statute. See RCW 42.56.240. Moreover, the Public Records Act permits public agencies to give notice to a person that a requested record pertains to, so that he or she can seek an injunction prohibiting disclosure. RCW 42.56.540. As explained below, however, specific restrictions on disclosure of video from vehicle-mounted cameras would not apply to body-mounted cameras absent a change in the Privacy Act.
For those that are not aware if law enforcement or anyone for that matter illegally records a private conversation they are subject to the Civil Action section of RCW 9.73.
Violating right of privacy—Civil action—Liability for damages.
Any person who, directly or by means of a detective agency or any other agent, violates the provisions of this chapter shall be subject to legal action for damages, to be brought by any other person claiming that a violation of this statute has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages, including mental pain and suffering endured by him or her on account of violation of the provisions of this chapter, or liquidated damages computed at the rate of one hundred dollars a day for each day of violation, not to exceed one thousand dollars, and a reasonable attorney’s fee and other costs of litigation.
Many of my readers will recall how many times I called BS on the public statements made by Frank Straub and Mayor Condon regarding the implementation of body cameras since the release of the Use of Force Commission Report back in 2012, and as you have observed the BS calling turned out to be very accurate.
BREAKING DOWN THE NEW LAW:
(14) Body worn camera recordings to the extent nondisclosure is essential for the protection of any person’s right to privacy as described in RCW 42.56.050, including, but not limited to, the circumstances enumerated in (a) of this subsection. A law enforcement or corrections agency shall not disclose a body worn camera recording to the extent the recording is exempt under this subsection.
(a) Disclosure of a body worn camera recording is presumed to be highly offensive to a reasonable person under RCW 42.56.050 to the extent it depicts:
***The language above is the preface for identifying specific body camera situations where law enforcement “shall not disclose”. The preface seems to establish a legislative intent to specifically identify those situations where they believe disclosure would “presumed to be highly offensive to a reasonable person”. That could create some real problems if that was their intent as it appears it was.
(i)(A) Any areas of a medical facility, counseling, or therapeutic program office where:
(I) A patient is registered to receive treatment, receiving treatment, waiting for treatment, or being transported in the course of treatment; or
(II) Health care information is shared with patients, their families, or among the care team; or
(B) Information that meets the definition of protected health information for purposes of the health insurance portability and accountability act of 1996 or health care information for purposes of chapter 70.02 RCW;
***This section was included, as it should have been, to protect an individual’s privacy rights as far as health care is concerned, but what could very well happen after June 19th is that we see law enforcement agencies withholding public disclosure of BC video of their contacts with folks suffering from mental health episodes including those where an Officer Involved Shooting or Death took place.
(ii) The interior of a place of residence where a person has a reasonable expectation of privacy;
***This section could easily end in a big mess for a couple of reasons; 1) The legislature acknowledges here that there is at least some reasonable expectation of privacy inside a residence, so the obvious question becomes when officers enter a residence and are told to turn off the body camera and they don’t…what happens? This will be one for the Washington State Supreme Court at some point, it is just a matter of time and which law enforcement agency it will be. 2)Obviously should an OIS take place inside a residence this section provides law enforcement to claim they legally can’t release the BC Video.
(iii) An intimate image as defined in RCW 9A.86.010;
*** This should be obvious, but some people might be disappointed.
(iv) A minor;
*** This provides law enforcement the opportunity to not disclose any BC video involving contacts with anyone under the age of 18, which means the public may never see video where a cop is accused of misconduct against a minor.
(v) The body of a deceased person;
*** According to this section the best place for cops to talk about what happened in a OIS, if they leave their BCs running is right next to the body (Ever wonder why many cops that do have their BC running in OIS cases shut them off right after the shooting? :)).
(vi) The identity of or communications from a victim or witness of an incident involving domestic violence as defined in RCW 10.99.020 or sexual assault as defined in RCW 70.125.030, or disclosure of intimate images as defined in RCW 9A.86.010. If at the time of recording the victim or witness indicates a desire for disclosure or nondisclosure of the recorded identity or communications, such desire shall govern; or
*** This is interesting and goes along the lines of the little box on police reports that is never checked and cops don’t ask which I have covered before. The question is will cops finally be required to ask the disclosure question during the contact…or not? As you can see whether or not the BC video can be disclosed is left up to the victim or witness in police contacts involving domestic violence or sexual assault, and although it will likely be rare that a victim or witness doesn’t object to disclosure there may be times when the don’t object, for example in a DV situation involving an Officer Involved Shooting or Death…this could also get interesting.
(b) The presumptions set out in (a) of this subsection may be rebutted by specific evidence in individual cases.
*** This is fairly plain, if you want the video get ready to go to court.
(c) In a court action seeking the right to inspect or copy a body worn camera recording, a person who prevails against a law enforcement or corrections agency that withholds or discloses all or part of a body worn camera recording pursuant to (a) of this subsection is not entitled to fees, costs, or awards pursuant to RCW 42.56.550 unless it is shown that the law enforcement or corrections agency acted in bad faith or with gross negligence.
*** This is one of my favorite sections because when the Bill was first introduced it gave me a good chuckle. This section was specifically designed to derail the Washington State Supreme Court Decision in Yousoufian v. my old classmate and buddy at Lewis and Clark Ron Sims.
The state’s high court ruled that a $124,000 fine paid by King County for what their decision referred to as “blatant violations of the state Public Records Act” wasn’t enough of a fine. They sent the case back to Superior Court with a recommendation to increase the penalty.
The plaintiff in the case, Armen Yousoufian, sued the county in 1997 after it delayed the release of documents pertaining to the public financing of Qwest Field (Seahawks Stadium). In response to the ruling, he said the court’s justices, have “at long, long last, given us a strong ruling in favor of public disclosure with some real teeth in it.”
Five of the court’s nine justices found King County’s actions so egregious as to warrant a fine at the “high end” of the act’s penalty range. The decision also used the phrase “grossly negligent noncompliance with the Public Records Act” to refer to the conduct of the county during the events in question.
The Yousoufian decision, caused some furor in local governments and law enforcement, but not a whole lot because it isn’t their money.
NOW FOR THE GOOD PART!
“Good”, depending upon whether you are a law enforcement agency or local government. “Bad” if you are a private citizen or even a media outlet seeking BC video.
This is what the new law requires you to identify if you want BC video:
(d) A request for body worn camera recordings must:
(i) Specifically identify a name of a person or persons involved in the incident;
(ii) Provide the incident or case number;
(iii) Provide the date, time, and location of the incident or incidents; or
(iv) Identify a law enforcement or corrections officer involved in the incident or incidents.
(e)(i) A person directly involved in an incident recorded by the requested body worn camera recording, an attorney representing a
person directly involved in an incident recorded by the requested body worn camera recording, a person or his or her attorney who requests a body worn camera recording relevant to a criminal case involving that person, or the executive director from either the Washington state commission on African-American affairs, Asian Pacific American affairs, or Hispanic affairs, has the right to obtain the body worn camera recording, subject to any exemption under this chapter or any applicable law. In addition, an attorney who represents a person regarding a potential or existing civil cause of action involving the denial of civil rights under the federal or state Constitution, or a violation of a United States department of justice settlement agreement, has the right to obtain the body worn camera recording if relevant to the cause of action, subject to any exemption under this chapter or any applicable law. The attorney must explain the relevancy of the requested body worn camera recording to the cause of action and specify that he or she is seeking relief from redaction costs under this subsection (14) (e).17
(ii) A law enforcement or corrections agency responding to requests under this subsection (14) (e) may not require the requesting individual to pay costs of any redacting, altering, distorting, pixelating, suppressing, or otherwise obscuring any portion of a body worn camera recording.
(iii) A law enforcement or corrections agency may require any person requesting a body worn camera recording pursuant to this subsection (14) (e) to identify himself or herself to ensure he or she is a person entitled to obtain the body worn camera recording under this subsection (14) (e).27
(f)(i) A law enforcement or corrections agency responding to a request to disclose body worn camera recordings may require any requester not listed in (e) of this subsection to pay the reasonable costs of redacting, altering, distorting, pixelating, suppressing, or otherwise obscuring any portion of the body worn camera recording prior to disclosure only to the extent necessary to comply with the exemptions in this chapter or any applicable law.
(ii) An agency that charges redaction costs under this subsection (14) (f) must use redaction technology that provides the least costly commercially available method of redacting body worn camera recordings, to the extent possible and reasonable.
(iii) In any case where an agency charges a requestor for the costs of redacting a body worn camera recording under this subsection
*** It should be pretty easy to figure out how restrictive the requirements above are, and the intent in establishing them.
THIS IS A BIGGIE!
(j) A law enforcement or corrections agency must retain body worn camera recordings for at least sixty days and thereafter may destroy the records.
*** The new law reduces the retention period for Body Camera video from 90 days to 60 days. What that means is that law enforcement agencies are free to destroy BC video after 60 days no matter what it contains unless someone quickly gets a PRR in. So, as is often the case if an allegation of misconduct surfaces after 60 days and you want the BC video you are going to be SOL. The Spokane City Council, or the Spokane County Commission could establish Ordinances requiring the SPD or SCSO to retain BC video for a more reasonable length of time…whether they do or not of course is a big question.
Most of the rest of the stuff in the new law is pretty easy to figure out, and establishing a “Body Camera Task Force” has been a part of all the recent attempts at legislation that have not passed.
I hope this was helpful, puts some things in perspective, and opens some eyes about what continues to go on with Body Camera Legislation.