By Jessica Whelan & Margaret M. Christensen
In the wake of several highly publicized police encounters with the public leading to the death of the individuals involved (Eric Garner, Michael Brown, Tamir Rice, and Sandra Bland, to name a few), the debate over public access to police body-camera video is heating up. Just last month, officials released body-cam footage of a University of Cincinnati police officer firing a single fatal gunshot at Samuel Dubose, unarmed at the time, as he drove away from a traffic stop. The release was made upon conclusion of the investigation into the circumstances of the shooting and was prompted, at least in part, by public outcry and pressure from Dubose’s family. In other cases, however, police may not release such footage quite so willingly. In such circumstances, it may be necessary to file a request for access under state open records laws. Body-cam footage is frequently sought by news media. And although in many cases body-cam footage is sought in criminal cases or tort actions against a police department, the release of body-cam footage also has implications for business litigators. It is not difficult to imagine that such footage could be relevant in a civil dispute because it may reveal information other than police action, such as the statements and actions of others captured on the video. The footage may also reveal conditions of buildings and other real estate, making it relevant in cases ranging from premises liability to contract and/or easement disputes.
Open Records Laws
All 50 states have open records laws, which are state law corollaries to the federal Freedom of Information Act. These laws allow members of the public to obtain public records (as defined by the laws themselves) from state and local governmental bodies. The laws generally define “public record” broadly to include information stored in a variety of media, including videos. See, e.g., Ind. Code § 5-14-3-2(o) (defining “public record” under Indiana law). A broad definition of “public record” comports with public policy behind open records laws to promote transparency of governmental bodies, and to likewise promote self-governance of the American people. See, e.g., Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 518 (1984) (“Without some protection for the acquisition of information about the operation of public institutions … by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.”) (Stevens, J., concurring).
However, all 50 states’ laws, as well as FOIA, contain a number of exemptions by which access to public records is restricted. For example, Indiana Code section 5-14-3-4(a) includes a list of 14 categories of documents that a public agency must withhold. Subsection (b) of the same statute includes a list of 26 categories of documents that a public agency may withhold at its discretion. First on the list of discretionary exemptions are investigatory records, defined in section two as “information compiled in the course of an investigation of a crime.” When invoking this investigatory records exemption, as with all exemptions, the burden is on the public agency that would deny access to the record. I.C. § 5-14-3-1. Courts are required to construe exemptions to the Access to Public Records Act strictly; however, they will not contravene express exemptions specified by the Legislature. Lane-El v. Spears, 13 N.E.3d 859, 871 (Ind. Ct. App. 2014) (citing Journal Gazette v. Board of Trustees of Purdue Univ., 698 N.E.2d 826, 828 (Ind. Ct. App. 1998)).
Indiana courts have only occasionally interpreted the term “investigatory record.” However, recent case law has indicated that the courts may take a broad approach when they do conduct such interpretation. The Indiana Court of Appeals in Lane-El rejected an argument that 21-year-old arrest records do not qualify as investigatory records due to their age. Id. at 872. In its analysis, the Lane-El court also cited to case law that has interpreted the definition “information compiled in the course of the investigation of a crime” broadly to include autopsy reports — even where the autopsy results find that no crime occurred. Id. at 871. The Lane-El court ultimately held that the law enforcement agency had met its burden of showing that the arrest records were investigatory records and that the requesting individual had not met his burden to prove that the denial of access was arbitrary or capricious. Id. at 872.
In addition to listed exemptions, some states’ open records laws provide for a balancing test, which allows a public agency on a case-by-case basis to balance the public interest in nondisclosure with the public interest in disclosure of a public record. See, e.g., Cal. Gov. Code § 6255. This type of balancing test could serve to prevent disclosure of body-cam footage, even in a situation where the investigatory exemption does not apply. Indiana, however, does not balance public interests or private interests in determining whether nondisclosure is appropriate — only the express exemptions in the statute are considered, Pigman v. Evansville Press, 537 N.E.2d 547, 551-52 (Ind. Ct. App. 1989).
Body-Cam Policies in Other Jurisdictions
With issues involving police encounters squarely in the media and the public discourse, many law enforcement agencies are now requiring their officers to wear body cameras that record events while the officers are on duty. Public demand for such body-cam policies is high. In fact, just over a month ago a body-camera grant for the Indianapolis Metropolitan Police Department expired, resulting in an end to the program. But after the August 9, 2015, fatal shooting of 15-year-old Andre Green in Indianapolis, many are urging the IMPD to bring back body cameras for its officers.
Along with the widespread adoption of body cameras comes a host of issues relating to public access to body-cam footage. Although it is arguable that these issues are adequately addressed by existing open records laws, including the investigatory exemption, others take a different view. One argument against exempting body-cam footage under the investigatory exemption is that body-cam footage is routine, if not nearly automatic, and routine footage shot in the course of an officer’s duties should not be exempt under the investigatory exemption when it later becomes part of a law enforcement investigation.
In order to clarify the issue, many state legislatures are considering additional laws to address these cases head on. For example, proposed legislation in Michigan would exempt from disclosure all body-cam footage recorded in a private place; a California bill would exempt all body-cam footage in its entirety. While the state of the law is in flux, some local jurisdictions are making independent policy decisions on the matter.
The Washington, D.C., Metropolitan Police Department, for example, has refused to release any body-cam footage, citing privacy concerns and claiming it cannot make the redactions necessary to comply with privacy law. In April 2015, the Los Angeles Police Commission voted to make Los Angeles the largest city in the country to equip all its officers with body cameras. However, LAPD Chief Charlie Beck has stated that he does not intend to allow public access to the majority of footage because the footage could be used as evidence in criminal or civil cases. A majority on the police commission voted in favor of this recommended policy.
Although case law involving access to body-cam footage is sparse, several recent cases involving police dash-cam video reveal some courts’ inclination to allow public access to such footage. For example, in Fisher Broadcasting-Seattle TV LLC v. City of Seattle, 326 P.3d 688 (Wash. 2014), a news organization brought suit against the Seattle Police Department for failing to respond to one of its reporter’s public records requests that included dash-cam videos taken by SPD officers. Specifically, the reporter had requested “copies of any and all digital, in-car video/audio recordings from the Seattle Police Department that have been tagged for retention by anyone from January 2007 to the present.” The SPD argued that it could not release the footage based on its Public Records Act’s “other statute” exemption, claiming that a state privacy act barred release of the videos. The Washington Supreme Court agreed in part, and in construing the exemptions of the Public Records Act narrowly, found the exemption limited to cases where the videos were involved in pending litigation. Thus, the court held that there was no blanket exemption for videos that might be the subject of litigation and exempted only those videos involved in actual pending litigation.
Similarly, in Ward & Lee, P.L.C. v. City of Claremore, 316 P.3d 225, 226 (Okla. Civ. App. 2013), the court considered whether the city’s denial of an open records request for dash-cam video of the requestor’s arrest was proper. The trial court found that the dash-cam video, as a direct piece of evidence, was not subject to disclosure under Oklahoma’s Open Records Act. Id. In its analysis, the court noted that the Open Records Act permits police departments to deny access to law enforcement records unless the records contain, in relevant part, facts concerning the arrest of an individual. Id. at 227. The court found that the video requested was a public record that would show facts relating to the requestor’s arrest and that the city failed to show that the video fell under any other exemption. Id. at 228. Thus, the court reversed the judgment of the trial court and remanded for further proceedings. Id.
The State of the Law in Indiana
While there appears to be no reported case law in Indiana discussing public access to body-cam footage, the Indiana Public Access Counselor recently issued an opinion on whether requested body-cam footage could be claimed as exempt under the investigatory records exception. (http://www.in.gov/pac/advisory/files/15-FC-158.pdf) On June 24, 2015, the PAC issued a response to Formal Complaint 15-FC-158. The initial public records request involved was made on April 16, 2015, to the City of Indianapolis Office of Corporation Counsel and sought all body-cam footage recorded on April 12, 2015. The request was denied based on the investigatory records exception. The requestor clarified that his request was for footage from officers investigating a homicide on April 12, 2015, and for footage from officers not part of that incident. The request was again denied under the investigatory records exception.
The PAC began his analysis by discussing the public policy behind the Access to Public Records Act and the definition of “public record” under the act. The PAC preliminarily concluded that any video recorded by police officers using a body camera would qualify as a public record. The PAC went on to examine the investigatory records exemption and, while noting that the exemption itself is broadly defined, cautioned the police department to use the exemption judiciously and use its discretion on whether to release footage “within the bounds of reason … to foster better relationships between police departments and communities, while promoting transparency between law enforcement and the people and communities they protect and serve.”
The PAC then discussed the requirement of Indiana Code section 5-14-3-4(b)(1) that records requests be stated with reasonable particularity. Finding that a request for a whole day’s worth of body-camera footage lacked reasonable particularity, the PAC recommended that the requestor identify a specific officer’s footage for a reasonably narrow time period.
The PAC gave no ultimate opinion on whether the investigatory records exemption would apply to body-cam footage, instead noting that the Indiana General Assembly passed a resolution to study the issue of public records requests for body-cam videos during the 2015 legislative session, and concluding that the Legislature will “hopefully set forth statutory guidelines for law enforcement and the public on this important matter.” However, if the PAC’s reasoning on dash-cam footage is any indication, it is possible that body-cam footage may be deemed exempt under the investigatory records exemption in certain circumstances. See PAC Advisory Opinion, (www.in.gov/pac/advisory/files/14-FC-295.pdf) (allowing the IMPD to withhold dash-cam footage under the investigatory records exemption).
The state of the law relating to disclosure of body-cam footage under public records laws, in both Indiana and other jurisdictions, is uncertain. As issues are studied, laws are passed, and case law is developed, we will gain a clearer understanding of the rights of the public and the responsibilities of the government. Until then, it is important to be aware of the issues surrounding requests for body-cam footage and keep abreast of developments in the law.•
• Ms. Whelan is an associate in the Indianapolis office of Bingham Greenebaum Doll. Ms. Christensen is a partner there and is a member of the DTCI. They have written on behalf of the Business Litigation Section of the DTCI. Questions about section membership should be directed to the section chair, Patricia McCrory, at Katz & Korin, 334 N. Senate Ave., Indianapolis, (317)396-2555. The opinions expressed in this article are those of the authors.