With the behavior of law enforcement officers under unprecedented scrutiny, it’s becoming easier for journalists and other public watchdogs to use public records to verify whether police used their authority properly.
In a July 7 ruling, a Pennsylvania appeals court held that video from a police cruiser does not qualify as a “criminal investigative record” that can be withheld from the public under Pennsylvania’s Right-to-Know-Law, and therefore must be released in response to an open-records request.
“The mere fact that a record has some connection to a criminal proceeding does not automatically exempt it,” says the Pennsylvania Commonwealth Court opinion, written by Senior Judge James Gardner Collins. The exemption, the court held, is designed to protect “recordscreated to report on a criminal investigation or set forth or document evidence in acriminal investigation or steps carried out in a criminal investigation.” At the time of a traffic stop, it’s not even clear that a crime exists at all — the recorder switches on automatically when the car’s lights or siren are activated.
(Importantly, the court’s ruling reemphasizes that public-records exemptions are not to be applied in an all-or-nothing manner: if police can demonstrate that a particular video contains a witness interrogation or other genuinely investigative materials, then those portions can be removed, but the entire video cannot be withheld.)
The Commonwealth Court’s ruling is consistent with recent decisions in other states affording the public access to videos of police doing their jobs in public places:
- The Oklahoma Court of Appeals ruled in 2013 that video from a police cruiser is subject to Oklahoma’s Public Records Act and cannot be withheld merely because of the possibility that it might be used as evidence in a future prosecution.
- In June 2014, the Washington Court of Appeals decided that the state’s Privacy Act authorizes police to withhold dash-cam videos only if the videos are actually being used in an ongoing court case, after which the recordings become public record.
The outlier is Ohio, where a state appeals court ruled in July 2014 that the Ohio State Patrol could withhold videos of troopers stopping a suspected drunk driver. The video qualified as a “confidential law enforcement investigatory record,” in the court’s view, because it showed how the trooper administered field sobriety tests and concluded there was probable cause for an arrest. Even in that case, however, the court did not categorically place all police video off-limits to disclosure (and in fact the highway patrol did turn over the video once the DUI criminal case had run its course).
In this article for SPLC’s Report magazine, reporter Michael Bragg looks at the related issues raised by categorizing police body-camera videos as public records. As more and more legislatures require officers to wear body-mounted cameras, lawmakers have been wrestling with the public’s right of access. In one recent example, Florida enacted a law exempting body-cam video from disclosure if shot inside a private home, at the scene of a medical emergency or anywhere else that a person appearing in the video has a reasonable expectation of privacy.
Police agencies are prone to over-use open records exemptions that were intended to protect only material that might realistically interfere with the ability to catch and prosecute criminals, such as documents disclosing the name of an informant or the existence of an undercover “sting” investigation. Everyday cases, including the vast majority of traffic stops, do not involve any confidential police sources or techniques. And civil remedies already exist if, in extreme cases, a police video is misused in a way that humiliates identifiable civilians with no legitimately newsworthy purpose.