Body-Worn Camera Recordings in Law Enforcement

BODY WORN CAMERA RECORDINGS WAPRO FALL CONFERENCE October 27, 2022 1:00 pm 2:00 pm

Tara Collings: Began working for the Seattle Police Department (SPD) Legal Unit in 2016, where she currently holds the position of Senior Public Disclosure Advisor. Tara has been with the Department since the inception of the Body-Worn Video Program, and over the past five years, she has processed Body-Worn Videos for Criminal & Civil Discovery and Litigation, and Public Disclosure Requests. tara.collings@seattle.gov PRESENTERS Morgan Damerow: Began working for the Attorney General s Office (AGO) in 2003. In 2018 he started the Local Government PRA Consultation Program which serves as a resource for local governments by identifying resources, providing training and technical assistance with PRA issues. In 2022 he was appointed as the Open Government Ombuds for the AGO. morgan.damerow@atg.wa.gov 2

This presentation is educational only and is not legal advice or a legal opinion. The PRA changes over time. Later court decisions or changes in statutes can impact the PRA and an agency s obligations. Materials provided are for reference purpose to assist you in developing and managing PRA requests for body worn camera recordings. DISCLAIMER Opinions and thoughts shared today are not necessarily the views of the City of Seattle or the Attorney General s Office. Seek legal advice from your department s attorney. 3

BODY WORN CAMERA RECORDINGS What are they? The video (images) captured from the body worn cameras. Sound recordings made by a body worn camera. How do officers use them? Body Worn Cameras (BWC) must be attached to the uniform of a law enforcement or corrections officer while in the course of their official duties. 4

Specific request requirements. May recoup redaction fees from certain requestors. Rebuttable presumptions of highly offensive depictions. Bad faith or gross negligence required for penalties. BWC RECORDINGS MAJOR DIFFERENCES RCW 42.56.240(14) 5

FOUNDATION Policies required (RCW 10.109.010) Do you need to update your PRA policy? Have you anticipated the IT needs to support the recordings? Do you have the staff necessary to timely provide records? Activation Deactivation Notification of recording to the public Officer training Permissible access and disclosure Preserving recordings 6

Requirements per RCW 42.56.240 (14)(d)(l-iv): THE Name of a person(s) involved in the incident; REQUEST Incident or case number; SPD EXPERIENCE Date, time, and location of the incident(s); or Majority of our PDRs are any and all requests that provide an incident number or involved party name. Identify a law enforcement or corrections officer involved in the incident(s). Utilize GovQA template responses. 7

Fully rolled out to all patrol officers in mid-2017. In 2017, 8 full time PDOS, 2 litigation support analysts, and 1 full time video specialists to provide both ICV and BWV for PDRs. Currently, we have 14 full time PDOS, 3 litigation support analysts, 1 police communications analyst, and 3 full time video specialists. Currently over 4.1 million videos in Evidence.com Includes Axon Body, Axon Fleet, Axon Citizen, and Axon Capture files. We have retained all videos since the program inception in mid-2017. SPD S EXPERIENCE ------------- ROLL OUT TO TODAY 8

SPD VIDEO SPECIALISTS Minimum Qualifications: Desired Qualifications: Minimum of 3 years experience working in video tape/slide program production, including operating audio and video tape production equipment. Associates Degree in Video Production, Communications, TV/film journalism, or related field (or a combination of education and/or training and/or experience which provides an equivalent background required to perform the work of the class). Demonstrated experience in directing, writing, production, editing, post- productions and multi-media. Knowledge of the Washington State Public Records Act. Ability to work independently with minimal supervision. Experience using technical redacting programs. Experience working in a confidential environment. 9

SPDS PROCESS PRE-RECORDING Policy that requires officers to upload, save, and tag their recorded videos at the end of their shift. No concern with videos being overwritten due to the policy and Consent Decree. Video specialists are responsible to retrieving videos and providing them to PDOs for review and response to PDRs. Issue to watch for: videos with no incident number tagged make it more difficult for video specialists, PDOs, etc. to locate later. 10

SPDS PROCESS POST-RECORDING Receive request. Locate incident. Submit activity to video specialists to research and pull all responsive videos. PDOs review the videos and note time stamps for necessary redactions. If redactions are not needed, PDO would invoice the requestor for the videos. If redactions are needed, but the requestor is not required to pay the redactions fees, PDO would immediately submit a new activity to video specialists to redact the videos. If redactions are needed and requestor is someone we can recoup fees from, PDOs invoice requestors for 10% deposit of redaction fees. Once deposit payment is received, PDO submits a new activity to video specialists to redact the videos. Once redacted videos are received, PDO reviews the videos again for accuracy. PDOs invoice for remaining 90% of redaction fees and typical records release fees. 11

Exemptions A law enforcement or corrections agency shall not disclose a body worn camera recording to the extent the recording is exempt under this subsection. Recordings are exempt to the extent nondisclosure is essential for the protection of any person's right to privacy. Highly offensive to a reasonable person. AND Not of legitimate concern to the public. More than one BWCR exemption may apply. 12

Privacy RCW 42.56.240(14)(a) Depictions of identified locations presumed to be highly offensive. The presumption may be rebutted by specific evidence in individual cases. SPD experience PDO s make the call regarding presumption of highly offensive. 13

Interior of Residence RCW 42.56.240(14)(a)(iii) The interior of a place of residence where a person has a reasonable expectation of privacy. Other PRA Exemptions BWV Action Does record include information the nondisclosure of which is essential for the protection of a person s right to privacy (RCW 42.56.240(1) as defined by RCW 42.56.050). Redact entire screen inside any residence including a house, apartment, tent, non-public area of a college dorm, etc. Audio redaction likely not necessary. 14

Medical Facility RCW 42.56.240(14)(a)(i)(A) Any areas of a medical facility, counseling, or therapeutic program office where: A patient is registered to receive treatment, receiving treatment, waiting for treatment, or being transported in the course of treatment. Health care information is shared with a patient, their families, or among the care team. SPD Experience: Officers audibly say they are entering a medical facility before turning off BWC. BWV Action Blur/redact entire screen inside the facility. Redact audio that would contain medical information. Other PRA Exemptions Medical and Mental Health Information Disclosure of Which Would Violate Privacy - RCW 42.56.230(3), RCW 42.56.240(14)(a)(i)(B). Medical Care and Mental Health Care Records - RCW 70.02.020(1), RCW 71.05, RCW 42.56.360(2). 15

Protected health information RCW 42.56.240(14)(a)(i)(B) Information that meets the definition of protected health information for purposes of HIPAA or 70.02 RCW. BWV Action Redact images and audio that would disclose health information. This may require redaction of the entire screen showing interaction with a healthcare provider. May include ambulance/EMT staff recorded on camera. Other PRA Exemptions Medical and Mental Health Information Disclosure of Which Would Violate Privacy - RCW 42.56.230(3). Medical Care and Mental Health Care Records - RCW 70.02.020(1), RCW 71.05, RCW 42.56.360(2). 16

Dv program or emergency shelter RCW 42.56.240(14)(a)(vii) Identifiable location information of a community-based domestic violence program or emergency shelter. SPD experience: images and audio that is redacted in BWV can be released unredacted in the corresponding in-car video. This is a BWV specific exemption. Other PRA Exemptions BWV Action Record includes information the nondisclosure of which is essential for the protection of a person s right to privacy. (RCW 42.56.240(1) as defined by RCW 42.56.050). Redact images that would indicate the address or other information that would reveal the location of a community-based domestic violence program or emergency shelter. May mean redacting images approaching location, redaction of address or other identifying information. Disclosure of the information would endanger a person's life, physical safety, or property. (RCW 42.56.240(2)). 17

Dv and sexual assault RCW 42.56.240(14)(a)(vi) The identity of, or communications from, a victim or witness of an incident involving domestic violence (RCW 10.99.020) or sexual assault (77.123.020). SPD experience: images and audio that is redacted in BWV can be released unredacted in the corresponding in-car video. This is a BWV specific exemption. Other PRA Exemptions BWV Action Medical Care and Mental Health Care Records - RCW 70.02.020(1), RCW 71.05, RCW 42.56.360(2). Redact images of victim/witness and redact all audio from victim or witness. Medical and Mental Health Information Disclosure of Which Would Violate Privacy - RCW 42.56.230(3), RCW 42.56.240(1). If at the time of recording the victim or witness indicates a desire for disclosure or nondisclosure of the recorded identity or communications, such desire shall govern. Information revealing victim/witness if disclosure endangers life or property. Preference at the time of complaint governs. RCW 42.56.240(2). 18

juveniles RCW 42.56.240(14)(a)(iv) A minor. SPD experience: an identifiable minor. Other PRA Exemptions BWV Action Juvenile Crime Victims and Witnesses - RCW 7.69A.030(4). Redact images of any minor identified in the incident or who could be readily identified from circumstances. Identifying Information of Juveniles - RCW 13.50.050, RCW 13.50.100(3). RCW 13.50.100(4)(a) & (b). Record includes information the nondisclosure of which is essential for the protection of a person s right to privacy. (RCW 42.56.240(1) as defined by RCW 42.56.050). Child Victim Sex Crime - RCW 10.97.130, RCW 42.56.240(5). 19

Intimate images RCW 42.56.240(14)(a)(iii) & 14(a)(vi) An intimate image: an individual or individuals engaged in sexual activity, including sexual intercourse as defined in RCW 9A.44.010 and masturbation, or an individual's intimate body parts, whether nude or visible through less than opaque clothing, including the genitals, pubic area, anus, or post-pubescent female nipple. Other PRA Exemptions Record includes information the nondisclosure of which is essential for the protection of a person s right to privacy. (RCW 42.56.240(1) as defined by RCW 42.56.050). BWV Action Redact qualifying portions of images. Do not redact identifying details unless other exemption(s) apply. 20

Deceased persons RCW 42.56.240(14)(a)(v) The body of a deceased person. Other PRA Exemptions Decedent images that show victim s fear and distress from imminent death or images of a decedent's body. - RCW 42.56.240(1). BWV Action Redact images of a body including partial images. 21

NESTED RECORDS (Records within Records) Places and things to watch for. Possible Exemptions MDT Screen. Department Computers. Private Devices (Employee and Public). Officer typing passwords into terminals. Officer walking around station while camera is running. Security concerns. Possibility of picking up information from other investigations. WACIC Information - RCW 42.56.070, 28 USC 534, 28 CFR 20.38, RCW 43.43.710. Information Received Directly from Dept. of Licensing - RCW 46.12.635, 18 UCS 2721, RCW 42.56.070. Record includes information nondisclosure of which is essential to effective law enforcement. (RCW 42.56.240(1)). Record includes information the nondisclosure of which is essential for the protection of a person s right to privacy. (RCW 42.56.240(1) as defined by RCW 42.56.050). 22

Must engage in a cost study Least costly commercially available method to the extent possible and reasonable. REDACTION FEES Cannot rely on another agencies' cost study, however, may use as a guide. SPD experience: our video specialists use Adobe Creative Cloud and some of Evidence.com s redaction features. 23

REDACTION COSTS General Rule: You may charge reasonable redaction costs to requestors. Must be least costly commercially available method of redaction, to the extent possible and reasonable. Exception to the Rule: You may not charge requesters that fall into one of the following categories: Persons directly involved in the incident recorded or their attorneys. A person or his/her attorney who requests a recording relevant to a criminal case involving that person. An executive director from either the Washington state commission on African American Affairs, Asian Pacific American Affairs, Hispanic affairs. An attorney who represents a person regarding a potential or existing civil cause of action involving the denial of civil rights under the federal or state constitution or a violation of a U.S. D.O.J. settlement (The attorney must explain the relevancy and request relief from redaction costs). 24

A person who prevails against a law enforcement or corrections agency that withholds or discloses all or part of a body worn camera recording pursuant to (a) of this subsection is not entitled to fees, costs, or awards pursuant to RCW 42.56.550 unless it is shown that the law enforcement or corrections agency acted in bad faith or with gross negligence. PENALTIES RCW 42.56.240(14)(c) 25

BWV Concerns Records are much more graphic than in-car videos. PDOs likely not trained the same as uniformed officers on how to deal with traumatic images/incidents. Ensure you train staff on what to expect and what resources are available should they need them. Secondary trauma. SPD experience: peer support/wellness unit, training on how to approach video review. 26

LESSONS LEARNED Retention policies from the beginning are a necessity. BWV can be set to record after camera is off as part of the cache. Know going in that your volume of requests will increase exponentially. SPD experience: began with 1 video specialists for both ICV and BWV requests. Now up to 3. 2016: before BWV - 5,884 requests. 2017: BWV mid-year - 6,236 requests. 2021: last year - 9,620 requests. Increase not due entirely to BWV, but the volume and complexity of requests increased with the BWV roll out. Other departments within your jurisdiction may end up with your records. Developed strategy to overredact videos and post publicly to lessen need for public to submit PDRs. Work with requestors to explain graphic nature of recordings. 27

BWC RECORDINGS RECAP BWCR is a specific class of records with unique rules. Specific request requirements. exemptions. Detailed guidance on Heightened standard for penalties award. Unique fees for redaction. Other PRA exemptions also apply to BWCR. There may be inconsistencies or anomalies in releasing records related to an incident. 28