Privacy v. Security: Use of Security Cameras on Government Property

Security cameras are utilized by local governments on government property for a variety of purposes, including to discourage crime, to monitor activity, and to protect public resources from damage. From a legal standpoint, local governments have wide latitude in using security cameras to video record activity in public places and government facilities, such as public parks or inside city halls. Capturing audio as a component of the video, however, is much more problematic under state law.

This blog will highlight the legal considerations associated with surveilling members of the public on public property and in government facilities. Notably, it will not address employee monitoring or law enforcement-related video recordings (including police body-worn cameras, dash-cam videos, and videos that depict inmates or others in police custody). Those types of recordings have their own legal considerations that are beyond the scope of this blog.

Privacy Concerns with Security Footage

An individual’s right to privacy is the primary issue to consider when installing security cameras to monitor public activity on publicly owned property and in public areas in government facilities. However, individuals do not have a reasonable expectation of privacy in public areas, given that it is not reasonable for people to expect that actions taken in a public place are private when they are done in full view of the public. Therefore, local governments have considerable leeway to use video cameras to record activity in areas open to the public (such as public parks or the lobby of a public agency building) so long as the area is not one where a person would have a reasonable expectation of privacy (such as changing areas and restrooms).

While soundless video recording is not prohibited by state law (see State v. Raymer, 61 Wash. App 516 (1991)), audio recording, either on its own or as a component of video, is much more problematic from a legal standpoint. Washington State’s Privacy Act makes it illegal to record a private conversation without the prior consent of all participants in the conversation. See RCW 9.73.030.

While the statute doesn’t define the term “private conversation,” Washington appellate courts look at (1) whether the parties manifest a subjective intention that it be private, and (2) whether the expectation of privacy is reasonable. See Dillon v. Seattle Deposition Reporters, LLC, 179 Wash. App 41 (2014). Other factors to consider include the presence of third parties, the role of interlopers, and the subject matter. See State v. Modica, 164 Wn.2d 83 (2008).

Due to all the variables, it is not generally recommended for local governments to use audio recording as part of their video security program because of the requirement to obtain prior consent from those being audio recorded.

While public notice is not required for security footage that records video only, it may serve as a double deterrent to crime to install signs alerting individuals to video surveillance. As well, installing recording notification signs is good public policy since employees and the public would expect to be notified that their activity in identified places is being recorded.

Recording Public Meetings

MRSC often receives questions about the related topic of recording meetings of the legislative body. First, members of the public are free to video and audio record meetings of the governing body and, further, the Open Public Meetings Act encourages (but does not require) agencies to record their open public meetings. See RCW 42.30.220. Note that recordings of open public meetings must be retained for six years after the end of the calendar year. See CORE GS50-05A-13.

Attendees and participants do not have a reasonable expectation of privacy at an open public meeting and it would be unreasonable for them to consider their public comments made at the meeting a “private conversation.” (Contrast this with executive sessions, where there are expectations of confidentiality. See MRSC’s blog, Expectations of Confidentiality and OPMA Executive Sessions.)

Public Disclosure and Records Retention Considerations

Video recordings from security cameras are public records subject to disclosure under the Public Records Act unless a specific exemption applies. A potential exemption that could apply to video recordings is RCW 42.56.240(1), which allows an agency to withhold a record that is part of an open investigative file or part of a closed investigative file, the nondisclosure of which is essential to effective law enforcement.

Notably, the “security” exemption under RCW 42.56.420 would not apply to general video surveillance, as that exemption is focused on protecting records related to terrorist acts, vulnerability assessments or deployment plans, and computer and telecomm security infrastructure. It’s important to remember that anyone can submit a public records request to inspect or obtain a copy of the video footage from a security camera — the request does not need to come from law enforcement.

The required records retention period for surveillance video that does not involve a specific incident is 30 days from the date of recording or until it is determined that no security incident has occurred, whichever is sooner. See CORE GS50-06B-18. If a security incident did occur, then the recordings must be kept for six years after the investigation is completed or the matter is resolved, whichever is later. See CORE GS2010-008.

Policies on Use of Video Cameras

It is a good practice for local governments to adopt a policy that governs the use of video cameras used for security purposes. Issues that such policies can address include:

1. Who decides where a video camera will be placed and what areas will be under surveillance;
2. What types of notices will be posted informing employees and the public about the video surveillance; and
3. What type of retention period will apply to any footage since it will constitute a public record.

The City of Maple Valley’s Parks and Recreation Department has a straightforward security camera policy that covers these points.

While this blog does not explore monitoring public employees in their workspaces, note that, if the agency has any unionized employees who would be subject to video monitoring for the purposes of discipline, that monitoring is a mandatory subject of bargaining. See Teamsters Local 174 v. King County, Decision 9495-A (PECB, 2008); Mountlake Terrace Police Guild v. City of Mountlake Terrace, Decision 11702-A (PECB, 2014).

Conclusion

While governmental use of security cameras can be a useful tool, agencies should take care to adopt a policy that outlines the precise ways in which the cameras will be used and how the recordings will be managed. As well, while audio recording is not absolutely prohibited, local governments need to take care not to violate Washington State’s Privacy Act when recording conversations.