New Recording and Disclosure Requirements for Certain Law Enforcement Interrogations

Effective January 1, 2022, and codified in Chapter 10.122 RCW, Substitute House Bill 1223, the Uniform Electronic Recordation of Custodial Interrogations Act (“Act”), places new recording requirements on law enforcement officers for certain types of custodial interrogations. While agency prosecutors and law enforcement professionals are already working on the operational, pre-trial, and trial aspects of the Act, this blog will focus on the record-keeping and disclosure requirements implicated by the Act.

The Recording Requirement

The Act requires law enforcement officers to electronically record certain “custodial interrogations” that occur at a “place of detention” as defined in the Act. A “place of detention” includes traditional locations, such as police interrogation rooms, but also police vehicles and in the case of juveniles, schools. The recording can be made by audio or video, depending on where the interrogation takes place.

To comply with this requirement, local agencies will need to install or expand the use of recording equipment within these locations and retain any recordings of custodial interrogations that take place there.

Records Retention Requirement

Section 14 of the Act, codified as RCW 10.122.140, requires each law enforcement agency to establish and enforce procedures to ensure that electronic recordings are “identified, accessible, and preserved throughout the length of any resulting sentence, including any period of community custody extending through final discharge.” This language likely supersedes any conflicting provision of the Local Government Records Retention Schedules, specifically the Law Enforcement Records Retention Schedule and the Prosecuting Attorney Records Retention Schedule, until such schedules are updated. Additionally, this language must be read along with the retention requirement in RCW 9.73.090(2), which states:

All recordings of communications or conversations made pursuant to this subsection shall be retained for as long as any crime may be charged based on the events or communications or conversations recorded.

RCW 10.109.010(1)(f) also requires agencies to adopt a policy to protect data collected and stored from body-worn cameras.

An agency may want to adjust its local procedures to require keeping a recording for the longer of the two periods (i.e., “throughout the length of a resulting sentence” or “as long as any crime may be charged”). Also, Section 15 of the Act, codified as RCW 10.122.150, requires a law enforcement agency to adopt a process for “preserving the chain of custody of the electronic recording.” While this requirement does not directly affect retention, agencies will need to include language addressing chain-of-custody requirements in their local procedures.

Based on our outreach to county prosecutors and city attorneys, it appears that most of them are still developing their records retention procedures. Some agencies that have already adopted policies for retaining electronic records produced by body-worn cameras are expanding that policy to include all electronic records.

Disclosure of Electronic Recordings

The Act discusses electronic recordings in general. It does not distinguish among recordings made in a facility, by vehicle-mounted systems (aka, dashcam), or by body-worn cameras. Since there are specific statutes that relate to vehicle-mounted and body-worn cameras, agencies need to make sure those requirements are still met when adopting the new procedures required by this Act.

We discuss disclosure of electronic records on our Disclosure of Law Enforcement Video Footage topic page. As we note on that page:

Other law enforcement videos may be covered by other exemptions or prohibitions; for instance:

• Videos that are part of an open investigation; or
• Videos that are part of an investigative record and nondisclosure of the video footage is essential to effective law enforcement or the protection of any person's right to privacy under RCW 42.56.240(1); or
• Videos in which a witness requesting anonymity appears. See, for example, Jane Does 1 through 15 v. King County, in which a university's private surveillance videos were released after redacting witness and victim identity by both pixelation of the faces and black boxes.

In addition to these other exemptions or prohibitions, dashcam videos and associated sound recordings get their own specific treatment in RCW 9.73.090(1)(c), which prohibits public disclosure of an in-car video if there is actual, pending litigation arising from the recorded event. In these cases, the videos may only be disclosed to the public after final disposition (see Fisher Broadcasting v. City of Seattle). However, this prohibition does not apply if the requestor is one of the parties involved in the litigation.

Body camera footage is exempt under RCW 42.56.240(14) to the extent nondisclosure is essential for the protection of any person’s right to privacy as described in RCW 42.56.050. The privacy test requires the agency to determine whether the recording would be highly offensive to a reasonable person and is not of legitimate concern to the public.

RCW 42.56.240(14) lists several examples of when public release of a body camera recording is presumed to be highly offensive to a reasonable person, but that only addresses the first part of the privacy test. Before it can withhold the recording, the agency must also decide if the footage is of legitimate concern to the public. If it is not, then the second element of the right to privacy test is met and the agency can withhold the record.

One thing to remember is that the exemptions in section RCW 42.56.240 are largely discretionary — except for subsection 14. As expressly stated in subsection 14, the exemption is mandatory and nondisclosure is required if the agency concludes that the recording meets both parts of the privacy test. And, even though RCW 42.56.240(14) provides specific exemptions for body cameras, other exemptions such as the victim/witness exemption or the open investigation exemption may also apply.

Last but not least, remember that records management is a team sport! Law enforcement officers, records managers, city or county clerks, and an agency’s legal advisors all have a part to play to help your agency comply with the seemingly never-ending updates and changes to records and disclosure requirements. Talk to each other and contact us if you have additional questions.