Aided by technological advances, government agencies are constantly inventing new ways to collect information — and it was only a matter of time before “drone surveillance” made it way onto college campuses.
Last week’s announcement that the University of Alabama-Huntsville had acquired a fleet of unmanned aerial vehicles with an eye toward equipping them with police security cameras undoubtedly sent a shiver through public urinators and weed cultivators everywhere. For journalists, however, every new method of recording what happens on the campus of a public university is another potential target for a public-records request.
So let’s fast-forward to the distant sci-fi future — say, six months from now. Huntsville skies are buzzing with low-flying surveillance drones, and journalists want to see what these robotic snoops have been recording. Can they?
State open-records laws entitle the public to review and copy any record, however broadly defined, that memorializes information gathered or kept in the course of a government agency’s business. State courts have regularly determined that the video from government-operated surveillance cameras qualifies as a public record.
For instance, an Arizona appeals court ruled in 1995 that television journalists could have access to police video from surveillance cameras at the scene of a double-homicide (although not the tape from a camera showing the police evidence locker, which might have compromised its security). More recently, a district court in Iowa likewise decided that security-camera footage of a City Hall altercation (poetically, one in which the mayor was arguing with two requesters over public records) was a public record.
(While the law of access to video records is relatively well-established, potential exceptions abound. At least one North Carolina attorney has argued that, under that state’s law, a videotape made for crime-prevention purposes may be withheld from disclosure even if the tape depicts no criminal activity.)
Based on how colleges typically respond to requests for much lower-tech records, at least some will try to conceal drone-captured surveillance video from requesters. Is there any legal basis to refuse?
“Personal privacy” is a non-starter. In a 1986 case involving a police fly-over that led to a marijuana bust, the U.S. Supreme Court determined that homeowners do not have a reasonable expectation of privacy in being free from aerial scrutiny of their backyards. It would be pretty audacious for a college to claim that its clandestine videotaping of students is perfectly fine, but producing that video to a requester would invade privacy.
“Pending police investigation,” on the other hand, might sometimes be a legally viable objection. At least one recent court ruling, in New Jersey, found that police could lawfully withhold surveillance-camera footage capturing an arrest that was the subject of an ongoing internal affairs investigation into complaints of excessive force.
If government agencies start doing borderline creepy and invasive things with domestic surveillance drones, the least they can do is let the public see what they’re up to. Literally.