Friday, May 15, 2015

Amendment to police body camera bill exempts video from Freedom of Information Act

Why can’t the public access body cam footage?

Posted by Paul Bowers on Fri, May 15, 2015 at 3:34 PM

Rep. Tommy Pope was one of the legislators who introduced the FOIA exemption amendment.
  • Rep. Tommy Pope was one of the legislators who introduced the FOIA exemption amendment.

On Wednesday, before the state House of Representatives voted unanimously to approve a bill that would require body cameras to be worn by law enforcement agents statewide, lawmakers added an amendment that would prevent the public from accessing video footage recorded by body cameras.

The amendment states, "Data recorded by a body-worn camera is not a public record subject to disclosure under the Freedom of Information Act."

Jay Bender, attorney for the S.C. Press Association, says the amendment is bad news for the public. "The only reason you would have a camera is so the public could have oversight as to the actions of the police," Bender says. "If you keep that confidential and the only people who get to see it are the police, do you think there's going to be a lot of self-reporting?"

The Freedom of Information Act, or FOIA, sets a protocol and certain deadlines by which public officials must respond to information requests. If FOIA is eliminated as a factor in body camera footage requests, response times would be left entirely to the discretion of law enforcement agencies.

Under the terms of the bill, body camera footage would be available to law enforcement agencies, the attorney general, and circuit solicitors, as well as certain private citizens who are either the subject of the footage or are a part of a case that involves the footage (see the full list below).

In the past, police dashboard camera footage has been subject to FOIA requests, although some law enforcement agencies have declined to hand over footage from ongoing investigations. Bender says the lack of public access could prove pivotal in cases similar to the April shooting of Walter L. Scott by a North Charleston police officer.

"Had that bystander not videoed the most recent shooting, the police report might have varied considerably from reality," Bender says.

According to House minutes, the amendment was introduced as part of a bundle of amendments by Reps. Wendell Gilliard (D-Charleston), Tommy Pope (R-York), Todd Rutherford (D-Richland), Rick Quinn (R-Lexington), Leon Stavrinakis (D-Charleston), Peter McCoy (R-Charleston), and James E. Smith (D-Richland).

Pope, the House speaker pro tempore, introduced the amendments on the House floor. He says the FOIA amendment did not come from any particular lawmaker.

"It's actually been a collective approach," Pope says. "The concern we've been running into with the cameras is the privacy issues and how to address them. The Senate kind of wrestled with that and made some attempts, and so that was kind of a joint attempt to try to address the privacy issues moving forward."

When asked why the proposed policy for body camera footage differs from the precedent set by dashboard camera footage, Pope said, "The theory here is, arguably ... a patrol car would not be in your home. Say for example your neighbors were dealing meth, and you called law enforcement to your house to discuss it. Would your neighbor be able to do an FOI to get the information of who had told them they were cooking meth? That was kind of the underlying thought process."

The bill currently allows access to body camera footage by "a criminal defendant if the recording is relevant to a pending criminal action."

The House amendments are pending approval by the Senate. Here is the full text of the bill's FOIA exemption:

(G)(1) Data recorded by a body-worn camera is not a public record subject to disclosure under the freedom of information act.

(2) The State Law Enforcement Division, the Attorney General, and a circuit solicitor may request and must receive data recorded by a body-worn camera for any legitimate criminal justice purpose.

(3) A law enforcement agency, the State Law Enforcement Division, the Attorney General, or a circuit solicitor may release data recorded by a body-worn camera in its discretion.

(4) A law enforcement agency may request and must receive data recorded by a body-worn camera if the recording is relevant to an internal investigation regarding misconduct or disciplinary action of a law enforcement officer.

(5) In addition to the persons who may request and must receive data recorded by a body-worn camera provided in item (2), the following are also entitled to request and receive such data pursuant to the South Carolina Rules of Criminal Procedure or the South Carolina Rules of Civil Procedure:

(a) a person who is the subject of the recording;

(b) a criminal defendant if the recording is relevant to a pending criminal action;

(c) a civil litigant if the recording is relevant to a pending civil action;

(d) a person whose property has been seized or damaged in relation to, or is otherwise involved with, a crime to which the recording is related;

(e) a parent or legal guardian of a minor or incapacitated person described in subitem (A) or (B); and

(f) an attorney for a person described in subitems (a) through (e).

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