OPRA Issues Raised By Police Body Cameras

The State has announced that State Troopers and many local police officers will be equipped with body cameras, and the Attorney General has issued a statewide directive governing the use of these cameras and their recordings. As I have previously discussed (see here and here), body cameras raise significant new OPRA issues.

It’s clear that recordings made by police body cameras are government records under OPRA. A recording that pertains to a criminal investigation is exempt from public disclosure, as held by the court in the Lyndhurst opinion, but all others generally should be accessible.

Consistent with these OPRA requirements, the Attorney General’s directive expressly states that public access should not be granted to recordings pertaining to criminal investigations, but it does not restrict public disclosure of any other recordings. Many police activities that do not necessarily involve a criminal investigation must be recorded, according to the directive, such as motorist aid, community caretaking checks, and transporting an arrestee. And police departments are permitted to specify additional non-criminal situations that their officers must record.

This means that many body camera recordings will be subject to disclosure. As a result, police departments will be confronted with the difficult issue of whether granting OPRA requests for videos of police-civilian interactions will harm the privacy interests of the individuals shown in the videos. Custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest in disclosure against the affected individual’s privacy interest. At this time, there is no case law that addresses the privacy issue in the context of police camera videos.

In addition to the substantive legal questions raised by OPRA requests for body camera recordings, there will likely be an enormous OPRA workload burden placed on police departments. I expect that police departments with body cameras will be inundated with OPRA requests for recordings, both from those seeking to monitor officers’ behavior as well as from individuals curious about a neighbor’s interaction with the police.

These requests cannot be answered quickly, in view of the need to consider privacy issues with regard to each video. In addition, the Attorney General’s directive requires that law enforcement agencies provide notice of all requests for access to body camera recordings to the Division of Criminal Justice or the County Prosecutor, presumably to ensure that the video does not pertain to a criminal investigation.

The body camera policy goes into effect in 60 days. Troublesome OPRA issues may be expected soon after the effective date.

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *