Body-Worn Cameras and the Right to Privacy Rex Barton and Elisha D. Hodge TnPRIMA Annual Conference November 20, 2015

The Debate (Part 1) http://www.cnn.com/videos/us/2015/07/21/body-camera-police-controversy-michael-brown-debate.cnn/video/playlists/police-use-of-force/

Body-Worn Cameras

COPS AND BODY-WORN CAMERAS: Lessons Learned from Phoenix Elliot, Vivian and Kurtenback, Mike. “COPS AND BODY-WORN CAMERAS: Lessons Learned from Phoenix’s Deployment of Body-Worn Cameras”. ICMA. November 2015. ICMA. 15 Nov. 2015. <http://icma.org/en/Article/106390/Cops_and_BodyWorn_Cameras>

COPS AND BODY-WORN CAMERAS: Lessons Learned from Phoenix (cont.) Benefits: Captured spontaneous utterances, evidence and other situations that could not be otherwise recreated in the courtroom. Enhanced community relations by increasing transparency and encouraging more civilized interaction. Produced greater arrest activity and a significant reduction in officer complaints.

COPS AND BODY-WORN CAMERAS: Lessons Learned from Phoenix (cont.) Include all appropriate community stakeholders City manager, police department, city attorney, D.A.’s office, finance department, IT department, public information officer, and community leaders *It is also advisable to include the city’s risk manager. Develop a communitywide strategic plan Before rolling out body-worn cameras, a citywide taskforce was established and policies and procedures were developed.

COPS AND BODY-WORN CAMERAS: Lessons Learned from Phoenix (cont.) Proactively educate citizens and city partners in the use of body-worn cameras. Notice What is being recorded and when Why recordings are being made and how they are being used The policies government’s policies and procedures on the use of body-worn cameras.

The ACLU’s White Papers Initial paper released in October 2013 and updated in March 2015. Stanley, Jay. “Called Police Body-Mounted Cameras: with Right Policies in Place, A Win for All.” ACLU. March 2015. American Civil Liberties Union. 15 Nov. 2015. <https://www.aclu.org/police-body-mounted-cameras-right-policies-place-win-all?redirect=technology-and-liberty/police-body-mounted-cameras-right-policies-place-win-all>

The ACLU’s Considerations and Recommendations Police should not be able to “edit on the fly” or choose which encounters to record and when to begin and end the recordings. Continuous recording v. activation when responding to a call for service or the initiation of any law enforcement or investigative encounter between the police and the public.

The ACLU’s Considerations and Recommendations (cont.) Law enforcement agencies must have a section of the policy that: Ensures that notice is provided to citizens before they are recorded, especially in situations where recordings are being made inside a home in a non-emergency situation. The notice inside an individual’s home needs to be provided on camera and the individual should provide consent before the cameras are turned on in a home.

The ACLU’s Considerations and Recommendations (cont.) The policy should also include retention procedures: Data should be retained no longer than what is necessary and the government’s retention policy should be posted on the government’s website. Certain videos should be flagged for longer retention periods. Flagged videos should include those that contain: Any incident involving the use of force; Any incident that leads to detention or arrest; and Any incident where a formal or informal complaint is registered.

The ACLU’s Considerations and Recommendations (cont.) The policy should also include the fact that videos can be flagged for incidents that might contain potential crimes and police misconduct. Finally, the retention section of the policy also needs to include provisions relative to how the recordings will be audited to ensure that they are not being manipulated by officers and that the chain of custody is protected.

The ACLU’s Considerations and Recommendations (cont.) The videos should be accessible to both the individuals captured within the videos and any other individual to whom the individuals consent. Flagged videos should be made accessible to the public, but should be redacted when possible.

The ACLU’s Considerations and Recommendations (cont.) Finally, the lack of adherence to policies must have consequences: Direct disciplinary action against the individual officer Certain rebuttable productions in favor of the defendant in criminal and civil cases http://www.wsmv.com/story/30532538/dickson-co-deputies-enter-home-with-body-cameras-off

In Summary . . . A number of things to consider before implementing the use of body-worn cameras: Type of technology to be used, cost, POLICIES Is technology auditable? Is technology secure? Does technology meet the needs of the agency? Are citizens on board and have they been educated?

Can the Right to Privacy and the Use of Body-Worn Cameras co-exist?

Can the Right to Privacy and the Use of Body-Worn Cameras co-exist Can the Right to Privacy and the Use of Body-Worn Cameras co-exist? (cont.) http://www.tennessean.com/story/news/politics/2015/11/02/police-body-cameras-spark-debate-privacy-tennessee/74756528/

Right to Privacy and Public Records in Tennessee T.C.A. § 10-7-503(a)(2)(A): All state, county and municipal records shall at all times, during business hours, which for public hospitals shall be during the business hours of their administrative offices, be open for personal inspection by any citizen of Tennessee, and those in charge of such records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law. In T.C.A. §10-7-505(d), the General Assembly directs the courts to interpret the provisions of the TPRA “broadly…so as to give the fullest possible public access to public records.” Tennessee courts have found that even in the face of serious countervailing considerations, unless there is an express exemption within the law, a record and/or information must be released.

Right to Privacy and Public Records in Tennessee Does the Tennessee Public Records Act (TPRA) contain privacy provisions that are applicable to body-worn camera recordings? Tenn. Code Ann. § 37-1-155 (Juveniles) Tenn. Code Ann. § 37-1-154 (Juveniles) Tenn. Code Ann. § 10-7-504(a)(16) (order of protection) *Tenn. R. Crim. P. 16(a)(2)

Public Privacy and Legislation Florida’s public records act exempts any body camera video obtained inside a private residence, a health care, mental health care or social services facility or is taken in a place that a reasonable person would expect to be private. North Dakota's public records act exempts any images taken in a private place by law enforcement from open records law.

Public Privacy and Legislation (cont.) National Freedom of Information Coalition http://dcogc.github.io/bwc/browse/ According the to report, 19 states currently have legislation related to privacy and body-worn cameras pending. National Conference of State Legislatures http://www.ncsl.org/research/civil-and-criminal-justice/law-enforcement.aspx

The Debate (Part 2) Does an individual’s right to privacy outweigh the benefit of what is captured here? Or here? https://www.youtube.com/watch?v=vCidpHYLmtE

QUESTIONS?

Contact Us: Rex Barton Police Management Consultant rex.barton@tennessee.edu (865) 974-9837 Elisha D. Hodge IPS Consultant III, Legal elisha.hodge@tennessee.edu (615) 532-6827