Legal Corner: Police Body Cameras
Christina Estes-Werther, League General Counsel
This past year there have been numerous articles and publications that highlight the advantages and disadvantages of police officers wearing body
cameras. Unlike dash cams or other recording devices, body cameras are mobile and provide a closer vantage point of developing situations. This
proximity to an incident can provide greater transparency as events unfold but these close encounters also present new challenges to law enforcement
agencies and the public.
As police departments around the state consider the use of body cameras for their cities and towns, it is highly suggested that any municipality
interested in body cameras consult with cities that are currently using the cameras in order to understand the complexities of the technology and
gain assistance when developing policies and procedures. There are many issues to consider but this article will focus on the use of the retention
schedule, application of the public records law, and privacy concerns.
What agency determines the retention schedule for law enforcement recordings?
Arizona law gives the Arizona State Library, Archives and Public Records ("State Library") authority to preserve and manage records including the
power to "establish standards and procedures for the preparation of schedules providing for the retention of records…" pursuant
to A.R.S. § 41-151.12. These retention schedules instruct government agencies about how to manage the records and provide a lawful
timeframe for the agency to legally dispose of the records based on the type of record.
Records management is an important function of local government. Proper retention periods help jurisdictions save money and resources that are allocated
for record storage. Additionally, the use of a retention schedule assists in the proper management of public records requests.
How long does a police body camera recording need to be retained?
Currently the retention schedule defines law enforcement records in specific categories and often the record is tied to a criminal classification such
as a misdemeanor or felony or a specific case file, which dictates the retention period.
Body camera recordings are not specifically mentioned in the current retention schedule but the State Library is in the process of modifying this record
series. In February 2015, the State Library formed a work group consisting of law enforcement officers, attorneys, state, city and county staff, and
risk management personnel to discuss the increased use of police body cameras in Arizona. The purpose of the workgroup was to obtain stakeholder feedback
when drafting a new retention schedule to incorporate this new technology for proper records management.
During the course of these discussions, it became evident that the current retention schedule did not contemplate these types of recordings. Depending
on the police department's policy, a police officer wearing a body camera may have hours of footage to download and review. Currently, the police
officers "tag" or catalogue the recordings in order to designate whether it is attached to a specific case file. Body camera recordings connected to a
designated crime, which are retained for the same period of time as the case file, are distinguished from body camera recordings with uncategorized calls
for services that don't result in a classification. A minimum time frame is being developed for this latter category to provide guidance while allowing
police agencies the discretion to retain recordings for longer periods due to other considerations such as the statute of limitations for federal claims.
Is footage from a police body camera a public record?
The definition of a public record remains the same, regardless of the media type. A "record" is broadly defined and includes various types of documentary
materials regardless of physical form or characteristics that are made or received by any public body to transact public business and are preserved by the
public body. A.R.S. § 41-151.18.
Public bodies are required to maintain records that are "reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and
of any of their activities" pursuant to A.R.S. § 39-121.01(B). If the content produced by the public body meets the definition of a "record" in A.R.S. § 41-151.18,
it must be managed according to the retention schedule. Here, footage from a police body camera will often meet the definition of a "record" and must be maintained
according to the retention schedule that is being developed by the State Library.
What steps can an agency take to safeguard confidential or private information about an individual who is filmed by the body camera?
Law enforcement encounters the public in vulnerable situations and the body cameras will create a record of these sensitive or traumatic encounters. If a public
records request is made for a recording under these circumstances, the law provides exceptions to withhold records from the public's view due to privacy concerns,
confidentiality requirements, or if disclosure is not in the best interest of the state. While these are narrow exemptions, law enforcement agencies can assert that
disclosure of the recording may impede an investigation or the release of a recording will violate the privacy of an individual.
Rather than denying a public records request, police officers can utilize redaction techniques that are often available with the camera software in order to protect
confidentiality. While redaction presents its own challenges due to the cost of additional storage for the duplicate recording and for the personnel to redact the
recording, it is tool that can be used to comply with the purpose of public records while protecting confidentiality and privacy. These are case-by-case situations
that will have to be examined by the agency and legal counsel to determine how to respond to a public records request that involves a privacy concern.
Will there be additional guidance issued about police body cameras?
Within the next couple of months, the State Library will conclude its drafting efforts for the body camera retention schedule and proceed to its formal review
process. The work group may continue to meet informally to discuss best practices by learning from those jurisdictions that have already implemented a body
camera program and any information will be shared with the municipalities.
Additionally, Senate Bill 1300 was passed this year and creates a study committee that will further investigate the challenges of this new technology and
recommend policies and laws on the use of the body cameras. The legislative committee is expected to be appointed and meet during the fall and a report is
due by December 31, 2015.
The use of police body cameras is a developing issue and many of the cities that have embarked on the use of police body cameras such as Peoria and Scottsdale are
great resources for other cities that are considering the implementation of a body camera program. While this article highlights a few issues involving the
interaction with Arizona law, it is important for any city to consider all of the issues including the cost of recording equipment and storage, the cost of
personnel to maintain and redact the footage and respond to public records requests, vendor requirements and the transfer of data if a city changes vendors, and
the infrastructure necessary for the city to maintain these recordings. Additional resources are included below to provide initial guidance for your city or town
to be successful with this new technology.
League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007