New PRA Exemption for Body Camera Recordings
Editor's Note: Since the drafting of this blog post, the Washington State Legislature: (1) amended RCW 42.56.240(14) to remove the requirement that a body worn camera program must be adopted by June 9, 2016 in order to use the exemption; and (2) removed the sunset date, making the exemption permanent.
Thanks to EHB 2362, there’s a new Public Records Act (PRA) exemption for body camera recordings. As I discuss below, however, the new exemption only applies to agencies with body camera programs in effect as of June 9, 2016, so act soon if your agency wants to take advantage of it.
Although the Legislature did not provide a categorical exemption (as some states have done), EHB 2362 amends RCW 42.56.240 to create an exemption for body camera recordings to the extent that nondisclosure is essential for the protection of any person’s right to privacy. So, if a body camera recording meets the two-prong privacy test established in RCW 42.56.050 (disclosure would be highly offensive to a reasonable person and not of legitimate concern to the public), it is exempt from disclosure.
In my experience, the two-prong privacy test can be tricky to apply. Luckily, the new exemption details specific body camera scenarios that are presumed to be highly offensive, thus meeting the first prong of the privacy test. Such scenarios include those body camera recordings depicting:
- The interior of a place of residence where a person has a reasonable expectation of privacy;
- A minor;
- The body of a deceased person; and
- The identity of a victim, or witness, of an incident involving domestic violence or sexual assault.
Of course, an agency will still have to meet the second prong of the privacy test to withhold such recordings, and the highly offensive presumption can be rebutted by specific evidence.
The exemption for body camera recordings contains a number of other unique PRA features:
- Fees, costs, and penalties aren’t awarded to a person who prevails in a PRA lawsuit unless the agency withholds the body camera recording in bad faith or with gross negligence.
- A person cannot request “all” body camera recordings. Instead, the requestor must provide some identifiers about the specific recording they want, such as: the name of the person or police officer involved in the incident; or the date and location of the incident.
- An agency can charge redaction costs to the requestor, such as those for pixelating and distorting the footage, with some exceptions.
- This exemption includes its own retention period, requiring that body camera recordings be retained for at least 60 days, after which they may be destroyed.
- Unlike most PRA exemptions, this exemption appears to be mandatory; the language reads that law enforcement “shall not disclose a body worn camera recording to the extent the recording is exempt under this subsection.”
Here’s the kicker though: the new exemption applies only to body camera programs (including pilot programs) in existence as of June 9, 2016. However, EHB 2362 is a bit unclear as to what exactly an agency must do by the June 9, 2016 deadline to take advantage of the new exemption. Our interpretation is that an agency must have at least one body camera in use and at least some interim policies in place governing camera use by the June 9, 2016 deadline. But, given this lack of clarity, your agency’s attorney should be consulted on how to deploy by the deadline.
Agencies deploying body cameras before June 9, 2016 must then adopt formal body camera policies by October 7, 2016 (120 days after the June 9, 2016 effective date). The policies must address various factors including: (a) when a body camera must be activated and deactivated; (b) how officers are to be trained on body camera usage; and (c) security rules to protect the data collected and stored. Although they cannot take advantage of the new exemption, agencies seeking to deploy body cameras on or after June 9, 2016 must also adopt such policies before deploying body cameras.
The exemption also has a sunset date of July 1, 2019. In addition, the Legislature created a task force to examine the use of body cameras, with a final report due to the Governor and certain legislative committees by December 1, 2017. The report will address various aspects of body camera programs, including: the redaction costs assessed to requestors, and the use of body cameras for gathering evidence, surveillance, and police accountability. I believe the reasoning behind the July 1, 2019 sunset date is that the task force’s recommendations will then take the place of the exemption created by EHB 2362.
So, if your agency is thinking about implementing a body camera program, consider doing so before June 9, 2016! If you wait longer, you won’t be able to take advantage of EHB 2362's new body camera recordings exemption.
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Image courtesy of City of Seattle.
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