FOIA, police cameras, and the New Frontier

Published March 2017

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

March 12-18, 2017 is “Sunshine Week,” an annual event sponsored by the American Society of News Editors and the Reporters Committee for Freedom of the Press to acknowledge the importance of laws and policies ensuring open government, and to recognize some of the important revelations that have come about through use of these laws.

It is important to recognize that openness in government does not always come easily; there are numerous forces and interest groups that argue that, for various reasons, certain types of information collected or created by government agencies and officials should not be subject to public disclosure. Most of us would probably generally agree with some of these: national security information, for example. But the real question is how broad any exemption from disclosure should be. Thus courts have held that statistics on federal Department of Justice implementation of the USA Patriot Act was not exempt from disclosure, while information about individual detainees at Guantanamo Bay need not be disclosed.

Here in South Carolina, a debate is going on over disclosure of another sort of government record: video footage shot by law enforcement.

Police records are generally accessible to the public under the S.C. Freedom of Information Act unless it would disclose the identities of informants; release information in a pending investigation; disclose confidential investigatory; endanger the life, health, or property of any person; or disclose the contents of intercepted wire, oral, or electronic communications. There is also a general exception in the Freedom of Information Act allowing government agencies to withhold “information of a personal nature where the public disclosure thereof would constitute an unreasonable invasion of personal privacy.”

Since these provisions do not specifically provide an exemption for video recorded by law enforcement officers, such video would presumably be accessible. But in 2015, Gov. Haley signed a law specifically exempting police body camera footage from disclosure under the Freedom of Information Act.

In Greenwood, the Index-Journal requested jail surveillance video showing how deputies reacted to inmate Demetric Cowan’s medical emergency before his death at the Greenwood County Detention Center on March 13, 2016. The newspaper also sought video from the deputies’ body cameras. The sheriff’s office released surveillance video of Cowan prior to his medical emergency, but refused to release video of the emergency itself, saying that doing so would invade the privacy of Cowan’s family. While maintaining that the sheriff should release the video under the state’s Freedom of Information Act, the Index-Journal declined to file a lawsuit because of the expense involved.

Then Cowan’s widow, LaKrystal Coats, filed her own lawsuit seeking to prevent the sheriff’s office from releasing the video. Coats’ lawsuit also asked the court to hold that such video is exempt from disclosure under the Freedom of Information Act. The Index-Journal made a motion that the case be dismissed, which was granted in late February. A motion to reconsider the dismissal is currently pending.

This leaves the question of whether such footage is subject to disclosure — and whether there is any privacy interest that could prevent such disclosure—unresolved.

Meanwhile, a bill currently in the Legislature would take a different approach to police vehicle dash camera footage. The bill, S.481, would generally make such footage of “an officer involved incident resulting in death, injury, property damage, or the use of deadly force” accessible under the Freedom of Information Act, subject to the same limitations as disclosure of police records. Generally the agency would also be able to go to court seeking an order allowing withholding of the video in such cases.

Nationwide, many states have passed laws within the past few years regarding accessibility of police surveillance and body cameras. According to a 2015 article on the issue by the Reporters Committee for Freedom of the Press, of the 26 states that had considered or passed laws regarding accessibility of police body camera footage, in 21 states the proposals would have limited access to such material.

There are several issues that arise when freedom of information laws—which were mostly written in and for the era of paper government records—are applied to body and dashboard cameras, as well as other forms of new technology. This Sunshine Week, it is useful to remember the purpose and value of freedom of information laws, and how public access to new, non-paper forms of government records enhance the goals of government transparency, accountability and democracy.
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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