April 23rd, 2015
Reflections on D.C. Administration’s Proposed Exemption of Police Body Camera Footage Disclosure
By Wei-Po Wang
Recently, the District of Columbia Mayor Muriel Bowser is looking to enact legislation to exempt footages from the Metropolitan Police Department (MPD)’s expanding body camera program from public records requests based on the Freedom of Information Act (FOIA) or its state counterpart. (“D.C. wants to keep police body camera footage hidden from public eye.” http://www.washingtontimes.com/news/2015/apr/14/dc-wants-police-body-camera-footage-exempt-from-pu/?page=all). The significance of the D.C. proposal, different from similar proposal or enactment by other states, is that instead of trying to hit a balance between the public interest in holding the police enforcement procedures accountable and the privacy concern associated with making these footages public, it goes all out and requests a blank check exemption of footages by police body cameras from the disclosure regime of FOIA.
Should the proposed statute come into reality, it would fall within the exemption under § 552(b)(3), where disclosure could be avoided if specifically exempted by statute. However, one must pay special attention to the qualifiers of subsection (b)(3), where the statute must “(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” Given the proposed enactment affords a blanket exemption for all footage data recorded by any police body camera, neither requirement (A) nor (B) seems to be of particular issue, since blanket exemption leaves no room for discretionary decision by the executive branch, and the criteria (i.e., all footages without any qualifier) is indeed particular in kind.
However, in view of the heightened public concern and awareness of law enforcement accountability arising out of the recent series of police brutality starting from the Ferguson incident through the most recent death of Freddie Gray, it has become apparent that more police accountability to be afforded through adoption of new technologies such as body cameras is now an ever important public interest issue. This leads to doubt that Mayor Bowser’s proposed legislation could have made more genuine efforts to strike a subtle balance between accountability and privacy.
In light of this line of development, it may be worth exploring how the new technology of police body camera and the footage data created by it would fit into the current FOIA exemption regime, especially under § 552(b)(7), which exempts from disclosure records or information compiled for law enforcement purposes, as long as they meet certain enumerated categories.
If it is a case where the public disclosure of the footages may interfere with enforcement proceedings, subsection (b)(7)(A) warrants such exemption. Subsection (b)(7)(B) affords exemption if the disclosure would deprive a person of a right to a fair trial or an impartial adjudication. This particular exemption may have implication in a situation where the images in a certain footage would in effect temper the perception of a potential jury pool on a foreseeable prosecution of the enforcing police officer’s conduct. The traditional personal privacy concern is also squarely addressed by subsection (b)(7)(C), for example in a case where the video footage caught certain private activities of bystander citizens who have no relevancy for public scrutiny. Prevention of endangering life or physical safety of any individual is also addressed by subsection (b)(7)(F).
Apart from the categorical exemption for interference with enforcement proceedings, § 552(b)(7) also highlights two specific exemptions associated with some most contested consideration in the course of law enforcement by police force. There is always the fear that such video footages would have the effect of revealing customary law enforcement techniques adopted by the police forces, which would inform future perpetrators on how to circumvent these enforcement efforts. This level of concern is safeguarded by subsection (b)(7)(E). Similarly, video recordings may a lot of times reveal the various confidential sources of information fostering the effective law enforcement, and disclosing these confidential source would have paramount adverse effect on future enforcement, investigation and prosecution efforts. Fortunately, this is also covered by subsection (b)(7)(D).
Based on the above analysis, it seems fair to declare that any privacy or law enforcement associated concerns along came with the development of body camera technologies has already largely been addressed by existing FOIA exemption regime. As a result, it may be more advisable for the D.C. administration to consider forgoing the blank check approach on body camera footage exemption, and instead taking up a more balanced, enumerative approach more akin to that of the FOIA.