In this day and age, it seems that not a week goes by without turning on the evening news, logging onto Facebook, or firing up a YouTube application and seeing videos depicting police encounters with civilians. Many of these videos are recorded on private cell phones and released by private citizens; however, some of these videos have been obtained by individuals, news sources, or other entities via public record request, the laws surrounding which are changing.
On January 7, 2019 Governor Kasich signed into law HB 425, “Declare police body camera recordings not to be public records,” to be effective April 8, 2019. The law does not declare that all dash-cam and body-cam recordings are not public record, but instead declares that “restricted portions” of the recordings are not included in the definition of public record. The law defines “restricted portions as the following:
- The image or identity of a child or information that could lead to the identification of a child who is a primary subject of the recording when the law enforcement agency knows or has reason to know the person is a child based on the law enforcement agency’s records or the content of the recording;
- The death of a person or a deceased person’s body, unless the death was caused by a peace officer or the consent of the decedent’s executor or administrator has been obtained;
- The death of a peace officer, firefighter, paramedic, or other first responder, occurring while the decedent was engaged in the performance of official duties, unless consent of the decedent’s executor or administrator has been obtained;
- Grievous bodily harm, unless the injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
- An act of severe violence against a person that results in serious physical harm to the person, unless the act and injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
- Grievous bodily harm to a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
- An act of severe violence resulting in serious physical harm against a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
- A person’s nude body, unless the person’s consent has been obtained;
- Protected health information, the identity of a person in a health care facility who is not the subject of a law enforcement encounter, or any other information in a health care facility that could identify a person who is not the subject of a law enforcement encounter;
- Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence;
- Information, that does not constitute a confidential law enforcement investigatory record, that could identify a person who provides sensitive or confidential information to a law enforcement agency when the disclosure of the person’s identity or the information provided could reasonably be expected to threaten or endanger the safety or property of the person or another person;
- Personal information of a person who is not arrested, cited, charged, or issued a written warning by a peace officer;
- Proprietary police contingency plans or tactics that are intended to prevent crime and maintain public order and safety;
- A personal conversation unrelated to work between peace officers or between a peace officer and an employee of a law enforcement agency;
- A conversation between a peace officer and a member of the public that does not concern law enforcement activities;
- The interior of a residence, unless the interior of a residence is the location of an adversarial encounter with, or a use of force by, a peace officer; and,
- Any portion of the interior of a private business that is not open to the public, unless an adversarial encounter with, or a use of force by, a peace officer occurs in that location.
Those exceptions that allow disclosure upon receipt of consent of the subject may only be released with the consent if one of the following apply:
- The recording will not be used in connection with probable or pending criminal proceedings; or,
- The recording was used in connection with a criminal proceeding that has been dismissed or for which a judgment has been issued, and will not be used again in connection with any probable or pending criminal proceedings.
The law also provides that if a public office denies a request to release a restricted portion of a recording, the requestor may file a complaint for mandamus with the court of claims, which will allow the release if it determines by clear and convincing evidence that public interest substantially outweighs privacy interests and other interests asserted to deny release.
Many of these components of the definition fall within other exceptions to public records and government entities are probably already withholding or redacting recordings that contain those components, such as confidential law enforcement investigatory records or information pertaining to the recreational activities of a person under the age of eighteen. However, government employees who handle the release and redaction of records should familiarize themselves with the new definition and continue to follow all other laws relating to public records. For example, records should be redacted where possible and only fully withheld if redaction would create a substantial burden or would remove all value from the recording.
Government entities should also review their records retention schedules to make certain it addresses this type of footage. They should remember that even if these materials are no longer public record, they could be relevant to future litigation.
Finally, the new law does not make it clear what procedures are required to be followed in obtaining “consent” to release records; it does not prescribe what lengths the government entity needs to go to in order to obtain consent or in which form the consent must be. Those who obtain consent to release records should in the minimum ensure that consent is given knowingly and in writing.