Sunlight had the opportunity last week to attend a public hearing of the D.C. Council that was held to discuss whether the public should have access to video from police body-worn cameras through the district’s FOIA process. While this hearing in the nation’s capital specifically addressed policy on this subject in D.C., it was simultaneously larger than that — serving partly as microcosm, partly as influential precedent for the kinds of conversations that are and will be playing out across the country.
While the call to increase transparency of police practice is national, its implementation is ultimately local. An increasing number of police departments are poised to adopt body-worn cameras in response to broad public support for this police transparency measure and new federal incentives. Meanwhile, the kind of information that these cameras collect is novel enough that it raises a host of new policy questions — and cities all across the country will need to determine how they meet the challenges presented by this new technology.
D.C. began discussing a police body-worn camera program over a year ago, and started a pilot implementation with police officers last fall. The pilot met with enough success that the district supports an expansion. During her 2015 State of the District address given in March, D.C. Mayor Muriel Bowser said that in 18 months all of the Metropolitan Police Department (MPD) patrol officers would be equipped with body-worn cameras. The cameras, she stated, will help to “embed” accountability.
However, the mayor then confused many accountability advocates by proposing a budget amendment that would keep all video captured by those body cameras exempt from FOIA requests — and therefore not available to the public. If there is an expansion of the body-worn camera program coupled with a new ban on accessing those videos through the normal accountability mechanisms, this throws into question exactly how police body-worn cameras will help us achieve transparency and accountability.
This amendment to make videos captured by body cameras exempt from FOIA was discussed Thursday in the D.C. Council’s Committee on the Judiciary hearing. Because D.C. is host to many national organizations focused on public interest policy, this hearing featured the additional benefit of attracting representatives of organizations with broad awareness and national experience and could help determine body camera policy outcomes nationwide.
MPD Chief Cathy Lanier was the only D.C. government witness to testify yesterday in favor of the sweeping exemption. The other government witnesses — Traci Hughes, head of D.C.’s Board of Ethics and Government Accountability, and Mike Tobin, head of D.C.’s Office of Police Complaints — testified in favor taking a more “balanced” approach when deciding whether video can be released to the public.
Hughes testified, “It is indisputable that the videos taken with [body-worn cameras] are public records.” She called the amendment unnecessary, saying, “It is exhaustive and it is completely counter to [Mayor Bowser’s] professed aim of a more inclusive and transparent government.”
Even the head of the D.C. Police Union, Delroy Burton, testified in opposition to a blanket exemption, saying that it would “[defeat] the purpose of having the [body-worn camera] program in the first place.”
Generally, Lanier said that privacy concerns of arrestees, juveniles, victims and protecting victims from the accused should be put above the public’s desire to see the videos. Demonstrating the challenges of redacting video from these cameras, Lanier pointed out the wide array of nonfacial images that would need redaction — including when cameras capturing family photos, addresses or school uniforms in a home — or sensitive medical information that she says is protected by laws on health information privacy already in place.
Lanier’s testimony effectively raised the question of how technology will help us achieve the best balance of public access and privacy protection, a balance technologists and police officers nationwide are trying to answer with creative solutions. Hughes, in response to suggestions that the technical requirements related to body cameras might be too time consuming or expensive to manage, argued that part of the $5 million in place in D.C. to expand the body-worn cameras from a pilot program to a fully implemented practice could be reallocated to hire staff to handle video requests, as has been done in Chesapeake, Va.
While the hearing highlighted substantial disagreement across the D.C. government agencies on the question of excluding police body-worn camera video from FOIA access, it also acted as an opportunity for a number of experts and activists to describe the long list of individual policy questions that have yet to be hammered out: from determining when police officers record to how the video is stored; from determining who has access to videos — and in what form — to establishing a chain of custody for the video; from the range of legally permitted uses for the captured video to the independent auditing of law enforcement compliance with these policies.
Attorney Kevin Goldberg, representing the D.C. Open Government Coalition, pointed out that last Thursday’s hearing should really be just the beginning of a series of subhearings to address each of these complex issues. All panelists commended the council for seeking to bring additional public voices to the table as the D.C. government works to establish balanced policy in this critical area. Doing so would be useful, as it is clear that the varied representatives of community interests don’t yet see eye-to-eye on a number of these issues. Katie Townsend represented the Reporters’ Committee for Freedom of the Press, an organization which has submitted multiple FOIA requests for D.C.’s police body-worn camera data and been denied. Townsend testified that the body-worn camera data could be appropriately handled by existing FOIA law, using the experience of their denial as evidence of how effective FOIA already is at preventing the release of private information. Meanwhile, Jeramie Scott, of the Electronic Privacy Information Center, testified that police body-worn cameras represent a new and uncontrolled surveillance tool and opposes their deployment altogether. If the body-worn camera program is fully implemented, Scott supported making video available for FOIA requests, with additional strong limits on collection, access and use.
We at Sunlight are extremely interested in the outcome of these discussions. The goal of achieving good access to information about the practice of government actors is central to our mission. However, we, along with most other information access advocates, are also interested in doing so in a way that avoids unnecessarily violating the privacy of private citizens. We are sensitive to the fact that this technology, if improperly regulated, runs the risk of reducing privacy and increasing public surveillance.
Whether you were able to attend the hearing or not, what do you think? What are the most important considerations to keep in mind in finding the right balance for this new transparency tool? Leave your thoughts in the comments section below.
Correction: This post initially stated that EPIC supported exempting police body-worn camera video from FOIA. EPIC’s testimony opposed creating a FOIA exemption for body-worn camera video if body-worn cameras are deployed.