Surveillance, Bodycams and…Aretha Franklin

sw13-oped-freeman60x80By Robert J. Freeman
Executive Director
New York State Department of State
Committee on Open Government, Albany

Cameras of all sorts are everywhere. Sometimes what they records is routine and innocuous, but often the events that are captured raise questions.

When video recordings are prepared by or for a government agency in New York, they are “records” subject to rights conferred by FOIL (Freedom of Information Law). As in all instances, their content and the effects of disclosure are the key factors in determining which portions are public or may be withheld.

If a surveillance camera is mounted on a police vehicle in plain sight in the park in Greenwich Village (a real occurrence) and captures what anyone in a public place can see, the video would be available under FOIL to anyone. Its presence, in fact, deterred bad behavior. But if a camera is hidden and placed in a high crime area to record what may be criminal activity, the recording might justifiably be withheld, for it could indicate its placement and provide potential lawbreakers with a means of evading detection or effective law enforcement.

Those are easy examples, but what about police officers’ use of bodycams? If a video involves the commission of a crime, disclosure might interfere with an investigation or deprive a person of a right to a fair trial. If it involves the person on the street who’s a witness, disclosure could jeopardize that person’s safety. If it’s the victim of a crime and depicts or captures a person grimacing in pain, disclosure, in the words of FOIL, might result in an unwarranted invasion of privacy. If it’s a victim of a sex offense or a juvenile who’s being arrested, the government is prohibited from disclosing.

What if the person depicted requests the video? That person can’t invade his or her own privacy, but others might also be visible, and there may privacy considerations relative to those people. What if the person depicted is claiming police brutality? Would a police department claim that the video is a “personnel record” that is confidential? What if the video involves an event of significant public interest, such as shooting, a racial incident or a riot – would the public interest outweigh the government’s interest in withholding?

And what about the administrative and technology-related issues – how long should the videos be retained. What does it cost to store them? When a FOIL request is made, a video must be reviewed in real time to determine which portions are public or deniable. If an enterprising reporter knows that 50 police officers in a city’s police department wear bodycams and record an hour a day, and the reporter requests the video covering a period of a month, how long can the Department reasonably take to respond? Should there be a special provision of law establishing a fee for reviewing and reproducing the video?

Accountability, privacy, safety and protecting the public are goals easy to express, but in today’s surveillance society, nobody has all the answers. That’s why the “Aretha Franklin Principle” is so relevant. No it’s not R-E-S-P-E-C-T, the instant response of most. It’s “You Better Think.” We’d all better think before diving headfirst into what clearly will create a series of issues and problems.

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