Rep. Mahan has introduced HB 1019 which restricts public access to law enforcement recordings. It defines “law enforcement activity” as “any instance . . . in which a law enforcement officer is enforcing the law” (specifically excluding administrative activities such as completing paperwork). “Law enforcement recording” is defined as audio or visual recordings of such activities recorded by a device provided to the officer for use in the officer’s official duties.
It specifies that, in order to meet the “reasonable particularity” requirement of the Access to Public Records Act (APRA), the request has to include the date and approximate time of the recording, the location, and the name of at least one person other than the officer who was directly involved in the law enforcement activity. It states that the recording is not an investigatory record — (investigatory records being among the class of records that may be withheld at the discretion of the responding agency).
Instead of being discretionarily withheld under the investigatory record section of the APRA, it creates a new exception whereby law enforcement recordings in general may be withheld. It creates an exception for people in the recording (and people like their attorneys or personal representatives) who have a right to inspect (but not copy) the recording twice. The public agency is required to obscure information related to confidential informants, undercover law enforcement officers, and any other information APRA mandates as exclusions from the public disclosure.
Additionally, it creates a court process by which a person requesting a record can overcome the agency’s discretion to withhold the recordings by petitioning a court for their release. Such a petition must show the court that release is in the public interest, does not create a risk of substantial harm to an individual or the general public, and will not have a prejudicial effect on ongoing court proceedings. The petitioner is not entitled to attorney’s fees for bringing such a request. If disclosure is required, the public agency would be required to obscure depictions of death or serious injury, nudity, individuals under 18 years old, victims of crimes, undercover officers, confidential informants, and personal medical information.
In general, recordings would be retained for not less than 180 days, but if certain events took place (such as a request by a person depicted in the video), the retention period would increase to two years or longer. If I’m reading the language correctly, it also — in the case of law enforcement recordings — dispenses with the need for a requestor who is depicted in the recording to go through the public access counselor before being entitled to attorney’s fees if they prevail in a challenge to nondisclosure. It also exempts law enforcement recordings from the criminal statute which prohibits placement of surveillance equipment on private property without the consent of the owner.
I’m not sure if this is the answer, but I respect what the author is trying to do. I think, in general, having cameras present in law enforcement encounters is beneficial. More often than not (but certainly not always) the recordings back up an officer’s account of an encounter. Having a recording going — even if it’s never requested or seen — probably serves a reminder to the officer to maintain his or her professionalism. But, having a vast database to maintain and sift through in service of the public records laws creates a significant disincentive to acquiring and implementing such cameras for law enforcement. It also raises significant questions about the rights of citizens who never consented to be recorded.