Snowden Becker

The SAA Records Management Section kindly invited me to participate in one of their regularly scheduled Google Hangouts this month, to talk about records management implications of new police body-worn camera (BWC) programs. You can tune in to that Hangout live (Noon Eastern, 9:00 AM Pacific) or watch the recorded version here. We plan to leave lots of time for Q&A, and you can tweet questions in advance using the #saarmrt tag–with help from the moderators, I’ll try to get to everything!

Anticipating there’ll be some questions related to information resources and where/how to read up on this subject, I have put together some suggestions for records managers who are, or may be, working with BWC footage or other digital media evidence (DME), either within or in collaboration with law enforcement agencies that are generating that material. This list is far from complete–I literally see new stuff every day, and have not read every last news story on the subject myself despite being very much interested in it–but it’s a start. Before I start listing links, I’ll also (somewhat) briefly summarize my introductory remarks from the Hangout to help frame the topic of BWCs and their records-management implications…

As noted by UCLA Law School Dean Jennifer Mnookin in her opening remarks for “On the Record, All the Time,” the IMLS-funded National Forum that Jean-François Blanchette and I organized in August 2016, body-worn camera programs and their associated recordings can be construed in two different ways:

An evidentiary construction of BWCs privileges their ability to create additional pieces of evidence to supplement police and witness testimony and material evidence. An instrumental construction, on the other hand, understands BWCs more broadly as tools of surveillance and social control–tools which are being used to incentivize and modify behavior (of both police and the public). The evidentiary construction of BWC is far narrower–recordings are retained solely on the basis of whether or not they document and can furnish evidence for prosecution of specific crimes, and retention periods are linked to state codes of criminal procedure and statutory limits on prosecution for the crimes in question (which differ from state to state), as well as on local, agency-level policies for evidence retention. The instrumental construction allows for, and even assumes, the use of BWC footage toward a variety of evaluative, analytical, and critical aims, whether or not that footage is explicitly evidentiary.

Each of these two constructions of BWC programs suggests very a different approach to creation, classification, retention, access, and post-custodial use of BWC recordings. And, as Dean Mnookin also noted, neither of these constructions of recording devices and their use in law enforcement will allow for policy solutions that wholly eliminate the tension between personal privacy and potential use(s) of the resultant footage. Balancing those interests is largely a matter of local implementation, guidelines, and procedures–including retention schedules and access policies.

This is a place where theory strongly influences policy and practice, as well as public trust and the public record. If an agency adopts a BWC program with an evidentiary construction in mind, they might very reasonably intend to retain only those recordings deemed evidentiary in nature. Everything else would be deleted after, say, 30 or 90 days–because the costs of storage are prohibitive, and the risks to personal privacy also increase the longer non-essential records are retained. But if the community that agency serves is advocating for adoption of BWCs because they want increased ability to monitor all contacts between police and the population–that is, they have an instrumental construction in mind–then trouble arises when requests for access to non-evidentiary recordings are turned down, or the recordings simply haven’t been retained. Large numbers of periodically deleted BWC records can look like good records management pratice, or it can look like a systemic cover-up. Conversely, instrumental approaches create the potential for camera-wearing officers to be subject to perpetual and pervasive scrutiny of their interactions with the public (even in the absence of complaints or use of force), and for members of the public to also be subject to far more invasive forms of surveillance and associated with a far more enduring and accessible record of that surveillance.

How well these recording programs work, and how well they’re received, especially in crisis, depends a great deal upon how well the intent and limits of each program are understood by all stakeholders. The wide variation in retention and access practices from state to state, and from agency to agency even within a state, further muddies these waters. For those working with BWC records or developing policies to manage them, determining whether the program is fundamentally construed as evidentiary or instrumental is an essential starting point–all else flows from there.

Many of these issues, and especially their implications for information managers, will be discussed in the final report from the OTRATT National Forum meeting, which is forthcoming. In the meantime, here are some links and resources records managers might find helpful:

• The American Civil Liberties Union (ACLU), Reporters Committee on Freedom of the Press (RCFP), Police Executive Research Forum (PERF), and WITNESS are all tracking this issue and exploring different aspects of BWC programs. They’re worth checking in with regularly, or following on FB or Twitter if you feel comfortable doing so.
• Given the wide variation in local practices, and the limited likelihood of a national standard for BWC policies emerging, you should at the very least be aware of what your local police department’s and sheriff’s office’s BWC program plans and related policies are. Check out their policy documents (especially drafts for public comment) and any press releases on BWC programs. Sometimes it will be clear whether they’re partaking of an evidentiary or instrumental construction for these programs, sometimes not. City Council meetings are a good place to learn about BWC program plans, too.
• Cornell University’s Legal Information Institute has links to the criminal code for each state. Bookmark yours, and follow your state legislature when it’s in session with an eye to any bills related to the status of BWC recordings as public records.

For a deeper dive on some key aspects of this topic:

BWC footage as public record: Remember, none of this is really new! Laws governing access to and retention of records in novel formats (especially electronic records) have rarely kept pace with technological change and contemporary record-making practice. Recent coverage suggests we’re grappling with these issues now in much the same ways we always have.

FOIA Legislative History. National Security Archive, The George Washington University.

Media Freedom & Information Access Clinic, Divine, J., Ehrett, J., Eidelman, V., Musinipally, D., & Wexler, R. (2015). Police Body Camera Footage- Just Another Public Record (Whitepaper). New Haven, CT: Information Society Project at Yale Law School. (PDF link)

Wheeling, K. (2016, June 13). Should Police Body Camera Footage Be Public Record?  Pacific Standard.

HB 972, the NC bill that went into effect October, 2016, declaring that BWC recordings are not public records: Here’s the bill status tracking showing various edits and full text of the bill (PDF link) as signed into law.

BWC policies, in their infinite variety, and recommendations for same: While not many of these policies address retention and preservation in any detail, they all have implications for records management and access policies. Even model policies leave a lot of room for local variation in the retention-and-release aspects of BWC programs.

The Leadership Conference on Civil and Human Rights, & Upturn. (2016). Police Body Worn Cameras: A Policy Scorecard. https://www.bwcscorecard.org/

Stanley, J. (2013/2015). Police Body-Mounted Cameras: With Right Policies in Place, a Win for All. An updated version of this ACLU policy report (PDF link) was released in March 2015.

Miller, L., Tolliver, J., & Police Executive Research Forum. (2014). Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned. (PDF link) Washington DC: Office of Community Oriented Policing Services.

BWC policies and their relationship to access and use by the press, the public, and others: Not all investigations are criminal investigations. Journalists are major beneficiaries of state and federal open records laws, so not surprisingly, they’ve been watching the debates around BWC recordings and their status as public records very closely. Even in cities like Seattle, though, where municipal open data policies double down on an already-quite-broad state-level public records act, and the PD is taking a leadership role in developing technical solutions to the challenges posed by BWCs and other new tech, the balance between privacy and accessibility is hard to find, and available resources are being outstripped by public demand and the complexity of media records.

Marshall, A. (2015, May 6). Police bodycam videos: The Wild West of open records requests | Reporters Committee for Freedom of the Press.

Reporters Committee for Freedom of the Press. (2015, July 10). Access to Police Body-Worn Camera Video.  This policy map is being updated regularly with contributions from the public–feel free to send in any policies you are developing or have access to yourself!

Seattle Office of City Auditor. (2015). Audit of the Seattle Police Department’s Public Disclosure Process. (PDF link) Seattle Office of City Auditor.

Privacy and ethical implications of video evidence, including BWC video:

WITNESS.ORG. (2016). Video as Evidence: Ethical Guidelines.

Funk, M. (2016, October 18). Should We See Everything a Cop Sees? The New York Times.

Data volume and data management challenges for DME:

Kreft, J. (2016). Measuring the Impact of Body Worn Cameras (BWC) on Data Management and Record Retention for Law Enforcement Agencies (Link to full-text version) (MSIS thesis). University of North Carolina, Chapel Hill.

Coleman, V. (2016, August 30). Thousands of Seattle police dashcam videos lost due to computer glitch. Seattle Times.