This 2017 image depicts a Chesterfield police officer with a camera attached to glasses. The controller for the device is worn on the officer’s chest.
State officials who are grappling with the rollout of body-worn cameras across law enforcement agencies on Tuesday discussed murky issues of how the state’s freedom of information laws apply to the footage.
Alan Gernhardt, executive director of the Virginia Freedom of Information Advisory Council, told state and law enforcement officials that video captured by the cameras involving criminal activity is likely sealed by a broad exemption in Virginia’s law. But other footage — during a traffic stop or in someone’s house where a crime wasn’t committed — may be within reach of the public.
The Freedom of Information Act doesn’t directly address body-worn camera footage — a relatively new technology — so it’s up to law enforcement agencies to take the footage and see where the law may apply.
“FOIA doesn’t have provisions that apply to body-worn cameras,” Gernhardt said in an interview. “You would hope there’s some consistency in application, but a lot of these exceptions are discretionary.”
Gernhardt was among presenters to a work group assembled by Brian Moran, Virginia’s secretary of Public Safety and Homeland Security. Legislators directed the work group to review the financial and policy implications of using body-worn cameras. The group is expected to offer findings and recommendations to the General Assembly by Nov. 15.
Gernhardt said privacy is one of the issues for law enforcement agencies dealing with noncriminal footage .
“If an officer pulls someone over for speeding, you may see a video of the arrest. That’s on a public street and there is no privacy implication,” he said. “But, say an officer responds to a call at someone’s house. They may see someone running naked out of bathroom. You would want to blur them out, which is a form of redaction.”
The work group also reviewed the findings of a survey by the Supreme Court of Virginia of district court clerks’ experiences with body-camera footage.
In a survey of 142 clerks this year, 72% said body-worn camera footage is used in their courts for general matters, excluding juvenile and domestic matters.
Among those, 29% said cases are “frequently” delayed because the defendant’s attorney or commonwealth’s attorney needs more time to review body-worn camera footage. And 42% said body-worn camera footage sometimes lengthens a trial or hearing; an additional 21% said it frequently does.
The time and workload pressures that body-worn cameras place on agencies and people who interact with the justice system has been a key focus of the group.
Last month, David Johnson of the Virginia Indigent Defense League told the commission that in a survey of 500 public defenders and court-appointed attorneys, a third said they spent an additional six to 10 hours per week reviewing body-worn camera footage. Johnson was referring to a survey by the Virginia Criminal Justice Conference.
Workload demands related to the footage also apply to FOIA. Gernhardt said there are time and resource demands related to redacting footage . Software and expertise to blur a face or modify a voice can be a stretch for some agencies, Gernhardt added.
“Some smaller law enforcement agencies don’t have access to it, they don’t have money in their budgets,” he said. “There’s definitely an expense component here.”
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