BODY-WORN CAMERA FOOTAGE RETENTION AND RELEASE: DEVELOPING AN INTERMEDIATE FRAMEWORK FOR PUBLIC ACCESS IN A NEW AFFIRMATIVE DISCLOSURE-DRIVEN TRANSPARENCY MOVEMENT

The widespread use of body-worn cameras (BWCs) by law enforcement agencies calls into question how those departments store and publicly release the large amounts of video footage they amass under public access laws. This Note identifies a changing landscape of public access law, with a close look at the federal Freedom of Information Act (FOIA) and its state analogues, as the result of the Capitol Insurrection and the national Movement for Black Lives. Namely, legislative enactments, DOJ programs, agency policy statements, and judicial opinions all indicate a movement toward more access and potentially more proactive disclosure of government records. This Note considers what a disclosure regime of BWC footage should look like in light of the new developments in freedom of information laws; it proposes an intermediary framework for release that balances proactive disclosures and agency responses to requests for disclosure. Three policy goals should serve as guideposts to achieve this intermediary framework: minimizing privacy violations and unnecessary oversurveillance, improving cost efficiency, and assessing the need for redistribution of resources from police to other more community-improving apparatuses. The congressional investigation of the Capitol Insurrection, the George Floyd Justice in Policing Act, and the Colorado Enhance Law Enforcement Integrity Act are exemplary, in some ways, of what disclosure should resemble. This model for approaching disclosure will be important for considering what types of information the public can access, what the public can do with that information, and how resources can be diverted or otherwise reconsidered as a part of disclosure regimes.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2023, Columbia Law School. I would like to thank Professor Olatunde Johnson and Professor David Pozen for their thoughtful guidance, support, and feedback. I would also like to thank the staff of the Columbia Law Review for their editorial assistance and my family and friends for their sincere encouragement. And finally, I would like to extend a special thank you to Jeffrey Okewunmi for his endless support. All views expressed are my own.

Introduction

As the most photographed American man in the nineteenth century, Frederick Douglass lauded the transformative nature of the camera as a catalyst for social change and racial justice; that is, with the camera, we can “see what ought to be by the reflection of what is, and endeavor to remove the contradiction.” 1 Henry Louis Gates, Jr., Frederick Douglass’s Camera Obscura, Aperture, Summer 2016, at 27, 27, https://archive.aperture.org/article/2016/2/2/frederick-douglasss-camera-obscura (on file with the Columbia Law Review) (quoting Frederick Douglass). Two centuries later, American lawmakers continue to hold on to this vision of the camera as a tool to achieve justice. Following the killing of Michael Brown in Ferguson, Missouri in 2014, law enforcement agencies across the United States widely implemented police body-worn camera (BWC) programs in an effort to increase police accountability and transparency. 2 See Justice Department Awards Over $23 Million in Funding for Body Worn Camera Pilot Program to Support Law Enforcement Agencies in 32 States, DOJ (Sept. 21, 2015), https://www.justice.gov/opa/pr/justice-department-awards-over-23-million-funding-body-worn-camera-pilot-program-support-law [https://perma.cc/YH3P-CXDJ] [hereinafter DOJ, BWC Grants]. But since the inception of BWC programs across the country in 2014, police have “shot and killed almost the same number of people annually—[over] 1,000.” 3 See Fatal Force, Wash. Post, https://www.washingtonpost.com/graphics/
investigations/police-shootings-database/ (on file with the Columbia Law Review) (last updated Sept. 23, 2022). Notwithstanding the perhaps well-meaning origin of BWCs, the results from these programs on police accountability remain generally unreliable. 4 See, e.g., Jennifer Lee, Will Body Cameras Help End Police Violence?, ACLU of Wash. (June 7, 2021), https://www.aclu-wa.org/story/%C2%A0will-body-cameras-help-end-police-violence%C2%A0 [https://perma.cc/H6CL-44HH].

Beyond the use of the camera itself as a tool, the footage amassed from the vast number of police–civilian interactions recorded on BWCs also raises important questions about the utility of BWCs in fostering police accountability. Determinations regarding where footage is stored, how it is stored, how long it is stored, whether it ever gets deleted, and whether the public will have access to certain footage might shield law enforcement agencies from necessary accountability, abrogate certain privacy rights, and incur costs and resources that might be better directed toward reforms or institutions other than law enforcement agencies. 5 See Police Body Camera Policies: Retention and Release, Brennan Ctr. for Just. (Aug. 3, 2016), https://www.brennancenter.org/our-work/research-reports/police-body-camera-policies-retention-and-release [https://perma.cc/XB5X-WJVA] [hereinafter Brennan Ctr., BWC Retention Policies] (last updated July 19, 2019). Given the continued investment of resources into these programs at the state and federal level, it is worth considering whether certain aspects of BWC programs, like footage retention and release, can be improved to better serve the transparency and accountability goals that these programs are meant to achieve.

State freedom of information laws and the federal Freedom of Information Act (FOIA) determine the amount of time footage can be retained by police departments and whether that footage must be released to the public. 6 See id. But, following the January 6th Capitol Insurrection (Capitol Insurrection) and the Movement for Black Lives during the summer of 2020, the conversation surrounding public access to government information seems to be evolving to encourage some degree of affirmative disclosure of government records. 7 Many pieces of scholarship and journalistic reports refer to the 2020 protests, demonstrations, and conversations in support of Black lives, antiracism efforts, police reform, and abolition following the murder of George Floyd collectively as the “Black Lives Matter” movement of 2020. See, e.g., Erika D. Smith, 2020 Was the Year America Embraced Black Lives Matter as a Movement, Not Just a Moment, L.A. Times (Dec. 15, 2020), https://www.latimes.com/california/story/2020-12-16/black-lives-matter-protests-george-floyd-coronavirus-covid-2020 (on file with the Columbia Law Review); Ashley Westerman, Ryan Benk & David Greene, In 2020, Protests Spread Across the Globe With a Similar Message: Black Lives Matter, NPR (Dec. 30, 2020), https://www.npr.org/2020/12/30/
950053607/in-2020-protests-spread-across-the-globe-with-a-similar-message-black-lives-matt [https://perma.cc/2254-FERK]. While the Black Lives Matter (BLM) organization continues to play an instrumental role in guiding racial justice efforts and encouraging protests and other forms of public participation and demonstration in support of Black lives, BLM was not the only organization involved in the 2020 movements. See Isaac Chotiner, A Black Lives Matter Co-Founder Explains Why This Time Is Different, New Yorker (June 3, 2020), https://www.newyorker.com/news/q-and-a/a-black-lives-matter-co-founder-explains-why-this-time-is-different (on file with the Columbia Law Review) (“And it has always been somewhat decentralized. We have tried various structures, but we have always said the power goes on in the local chapter because they know what is going on, and they are the ones familiar with the terrain.” (quoting Opal Tometi, co-founder of BLM)); John Eligon & Kimiko de Freytas-Tamura, Today’s Activism: Spontaneous, Leaderless, but Not Without Aim, N.Y. Times (June 3, 2020), https://www.nytimes.com/2020/06/03/us/leaders-activists-george-floyd-protests.html (on file with the Columbia Law Review). This Note will refer to the protests, demonstrations, and conversations that occurred in 2020 following the murder of George Floyd, along with other Black individuals, as the “Movement for Black lives” to encompass the full range of organized, spontaneous, and collaborative antiracist activism in support of Black lives that occurred in 2020 and continues today. This change complements the traditional request-driven model of disclosure, which currently exists at the state and federal level and requires interested members of the public to request the disclosure of certain information. Both the Capitol Insurrection and the Movement for Black Lives have increased discourse about the importance of transparency for government records and called into question the efficacy of traditional forms of disclosure under transparency laws like FOIA and its iterations at the state level. 8 See infra Part II. In light of this discourse, this Note proposes that more affirmative disclosure with clear guiding principles and standards can both strengthen the accountability function and mitigate some of the risks of BWC footage retention and release policies.

Part I discusses the history of BWC programs, the considerations state and local governments weigh when crafting BWC programs, and the landscape of state freedom of information laws and FOIA. Part II explores how transparency regimes are changing from the typical request-driven model of disclosure to emphasize more affirmative disclosure. It further discusses the shortcomings of the current disclosure regime for BWC footage. Considering the new shifts in disclosure regimes and the shortcomings of the current disclosure regime for BWC footage, Part III presents an intermediary regulatory framework for BWC footage retention and release. By combining the benefits of affirmative and request-driven disclosure and adopting policy goals as guideposts in the creation of this intermediary framework, Part III argues that better outcomes in accountability and societal justice can be achieved.