SENATE BILL REPORT

EHB 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.

As Reported by Senate Committee On:

Law & Justice, February 26, 2016

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 History: Passed House: 2/22/16, 61-36.

Committee Activity: Law & Justice: 2/24/16, 2/26/16 [DPA].

Brief Summary of Bill (Recommended Amendments)

  • 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.

SENATE COMMITTEE ON LAW & JUSTICE

Majority Report: Do pass as amended.

Signed by Senators Padden, Chair; O'Ban, Vice Chair; Pedersen, Ranking Minority Member; Frockt, Pearson and Roach.

Staff: Tim Ford (786-7423)

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 (PRA).

PRA. The 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 (Recommended Amendments): 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 from a covered jurisdiction while in the course of his or her official duties, and that is made on or after the effective date of the act and prior to July 1, 2019. "Covered jurisdiction" means a jurisdiction that has deployed body-worn cameras as of the effective date of the act, regardless of whether the cameras are being deployed on the effective date of the act, and including jurisdictions that have deployed the cameras on a pilot basis.

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 gross negligence.

An agency that charges for redaction of body-worn camera recordings must use redaction technology that provides for the least costly commercially available method of redacting body-worn camera recordings, to the extent possible and reasonable. The time an agency spends on redaction of body-worn camera recordings for which the agency charges redaction costs may not count towards the agency's allocation of, or limitation on, time or costs spent responding to public records requests, as established pursuant to local ordinance, policy, procedure, or state law.

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, nor is it intended to modify the obligations of law enforcement or prosecutors under Brady v. Maryland, Kyles v. Whitley, or relevant statutes or court rules.

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. The requirement that an agency adopt body-worn camera policies expires July 1, 2019.

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; immigrant or refugee communities; victim advocates; tribal communities; the public; and a person with expertise in retaining and redacting recordings.

The task force must hold public meetings in locations that include rural and urban communities and communities in the eastern and western parts of the state.

The task force must report, by December 1, 2018, its findings and recommendations regarding: costs assessed to requesters; policies adopted by agencies; retention and retrieval of data; model body-worn camera policies; the use of body-worn cameras in health care facilities subject to federal and state health care privacy laws; and the use of body-worn cameras for gathering evidence, surveillance, and police accountability.

The task force must allow a minority report to be included with the task force report if requested by a member of the task force.

The introduction of body-worn camera footage as evidence in a criminal proceeding is prohibited, unless there is probable cause to believe that the footage is evidence of criminal activity constituting a felony offense, or driving while impaired, or where the footage is obtained in the course of executing a valid warrant or obtained under exigent circumstances.

EFFECT OF CHANGES MADE BY LAW & JUSTICE COMMITTEE (Recommended Amendments): Prohibits introduction of body-worn camera footage as evidence in a criminal proceeding unless there is probable cause to believe that the footage is evidence of criminal activity constituting a felony offense, or driving while impaired, or where the footage is obtained in the course of executing a valid warrant or obtained under exigent circumstances.

Disclosure of a body camera recording is presumed to be highly offensive where the recording depicts a patient at a medical center for treatment, or protected health information.

Policies are not required to have an officer deactivate a body-worn camera when entering a residence.

Appropriation: None.

Fiscal Note: Available.

Committee/Commission/Task Force Created: Yes.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: PRO: We need help with protecting privacy. There are benefits including transparency. This bill will allow complaints to be resolved quicker, improve public trust, and allow the use of body cameras to create an independent and unbiased record. Many police departments are not using body cameras because of concerns regarding broad public disclosure requests that consume a large amount of local government staff time, resources, and money.

CON: This will allow police to invade privacy without accountability. Virtually anything recorded by a body camera is disclosable if it meets the legal test of a legitimate public interest. There is no requirement for community input on the policy for using body cameras by local government.

Persons Testifying: PRO: Rep. Hansen, Prime Sponsor; Rufus Houston, No Boundaries Ministry; Tazsjah Green, Asia Renee, Ladarius Valentine, Darrell Green, Partnering for Youths Achievement; Rowland Thompson, Allied Daily Newspaper; Germaine Kornegay, Sedro-Wooley City Council; Erin Berg, Sedro-Wooley; Gary Jenkins, Pullman Police Dept.; Harriet Walden, Mothers for Police Accountability; Richard Johnson, Mount Zion Missionary Baptist Church; Derek Young, Pierce County Council; James McMahan, WASPC; Lisa Thatcher, WSHA; Candice Bock, AWC.

CON: Arthur West, citizen; Bud Sizemore, WA Council Police & Sheriffs; Shankar Narayan, ACLU of WA; Elliott Dandy, One America.

Persons Signed In To Testify But Not Testifying: No one.