Washington State

House of Representatives

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BILL

ANALYSIS

Judiciary Committee

HB 2362

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

Title: An act relating to video and/or sound recordings made by law enforcement or corrections officers.

Brief Description: Concerning video and/or sound recordings made by law enforcement or corrections officers.

Sponsors: Representatives Hansen, Pettigrew, Nealey and Kirby.

Brief Summary of Bill

  • Establishes Public Records Act provisions governing requests for and disclosure of certain body worn camera recordings made by law enforcement and corrections officers while in the course of their official duties.

  • Requires law enforcement and corrections agencies that deploy body worn cameras to adopt policies covering the use of body worn cameras.

  • Establishes a task force to review and report on the use of body worn cameras by law enforcement and corrections agencies.

Hearing Date: 1/14/16

Staff: Edie Adams (786-7180).

Background:

Body worn cameras are increasingly being deployed by law enforcement agencies to record interactions between law enforcement officers and community members in the course of the officers' official duties. Body worn camera recordings are public records subject to the Public Records Act.

Public Records Act.

The Public Records Act (PRA) requires state and local government agencies to make all public records available for public inspection and copying upon request, unless the records fall within certain statutory exemptions. The stated policy of the PRA favors disclosure and requires that listed exemptions be narrowly construed. If information falls under an exemption, an agency must determine whether the exempt information can be deleted so that the remaining portions of the record may be released. An agency must describe why each withheld record or redacted portion of a record is exempt from disclosure.

The PRA exempts a variety of records from public inspection and copying, including many types of personal records and personal information. Some information relating to investigations, law enforcement, and crime victims is also exempt. These exemptions include:

The PRA does not contain a specific privacy exemption. However, some PRA exemptions incorporate privacy as one component of the exemption. Invasion of a person's right to privacy under the PRA is defined to mean disclosure of information that would be both highly offensive to a reasonable person and not of legitimate concern to the public.

An agency may not distinguish among persons requesting records, and may not require requestors to provide information about the purpose of the request except to determine whether disclosure is exempted or prohibited. An agency may not charge a fee for locating and making records available for inspection, but may charge for the actual cost of copying the records.

A party who prevails against an agency in a legal action seeking the right to inspect or copy public records must be awarded all costs and reasonable attorneys' fees incurred in the action. In addition, the court may award the person up to $100 per day that the person was denied access to the public record. Agencies are immune from liability for damages based upon the release of a public record if the agency acted in good faith in attempting to comply with the PRA.

Privacy Act.

The Privacy Act prohibits the interception or recording of a private communication without first obtaining the consent of all parties to the communication unless a specific exemption applies. Consent may be obtained when one party announces to all other persons engaged in the communication that the communication is about to be recorded, and the announcement is itself recorded.

Certain recordings are exempt from the Privacy Act. Sound recordings that correspond to video images recorded by video cameras mounted in law enforcement vehicles are exempt, as are recordings of arrested persons before their first appearance in court. However, these recordings must follow a number of specific statutory requirements and limitations.

The Privacy Act applies only to audio recordings of private communications. In determining whether a conversation or communication is private, courts consider whether the parties manifested a subjective intention that the communication be private and whether that expectation of privacy was reasonable under the circumstances.

A 2014 Attorney General opinion analyzed whether body worn camera recordings fall under the requirements of the Privacy Act. The opinion determined that body worn camera recordings generally are not subject to the Privacy Act, noting that Washington courts have consistently held that conversations between members of the public and law enforcement officers, when the officers are known to be performing official duties, are not generally considered private for purposes of the Privacy Act.

Summary of Bill:

Public disclosure and other requirements relating to body worn camera recordings are established under the PRA. Law enforcement and corrections agencies that deploy body worn cameras must develop policies on their use, and a task force is created to examine the use of body worn cameras by law enforcement and corrections agencies.

"Body worn camera recording" is defined as a video and/or sound recording that is made by a body worn camera attached to the uniform or eyewear of a law enforcement or corrections officer while in the course of his or her official duties and that is made on or after the effective date of this section and prior to July 1, 2018.

Public Records Act.

Body worn camera recordings are exempt from the PRA to the extent nondisclosure is essential for the protection of any person's right to privacy under the PRA. A law enforcement or corrections agency may not disclose a body worn camera recording to the extent the recording is exempt from disclosure. Disclosure of a body worn camera recording is presumed to be highly offensive to a reasonable person to the extent it depicts:

A request for body worn camera recordings must: specifically identify a name of a person or persons involved in the incident; provide the incident or case number; provide the date, time, and location of the incident or incidents; or identify a law enforcement or corrections officer involved in the incident or incidents.

Except for certain specified persons, a law enforcement agency may require any person who requests body worn camera recordings to pay the reasonable costs of redacting, altering, distorting, pixelating, suppressing, or otherwise obscuring any portion of the body worn camera recording as necessary to comply with applicable exemptions. These costs may not be charged to the following requestors:

In a court action seeking the right to inspect or copy a body worn camera recording, a person who prevails against a law enforcement or corrections agency that withholds or discloses all or part of a body worn camera recording is not entitled to fees, costs, or awards unless the law enforcement or corrections agency acted in bad faith or with negligence.

The body worn camera recording exemption is not to be construed to restrict access to body worn camera recordings as otherwise permitted by law for official or recognized civilian and accountability bodies or pursuant to a court order.

Body Worn Camera Policies.

A law enforcement or corrections agency that deploys body worn cameras must establish policies regarding the use of the cameras. The policies must, at a minimum, address:

An agency that deploys body worn cameras by the effective date of the act must establish the policies within 120 days of the effective date of the act. An agency that deploys body worn cameras on or after the effective date of the act must establish the policies before deploying body worn cameras.

Body Worn Camera Task Force.

A task force is created to examine the use of body worn cameras by law enforcement and corrections agencies. The task force consists of legislative members and representatives of: the Governor's office; law enforcement agencies and officers; local governments; prosecutors and defenders; the American Civil Liberties Union; the Washington Coalition for Open Government; the news media; the Washington State Commissions on African American Affairs, Asian Pacific American Affairs, and Hispanic Affairs; victim advocates; tribal communities; and the public.

The task force must report, by December 1, 2017, its findings and recommendations regarding costs assessed to requesters, policies adopted by agencies, retention and retrieval of data, and the use of body worn cameras for gathering evidence, surveillance, and police accountability.

Appropriation: None.

Fiscal Note: Requested on 1/8/2016.

Effective Date: The bill takes effect 90 days after adjournment of the session in which the bill is passed.