In the last few weeks, it seems that every time I read or hear the news, police body cams are at the forefront. Even as a bill was being introduced in the General Assembly, and the North Charleston case was making headlines, I got calls on the Hotline asking whether the video from “body cams” and “dash cams” are public record. On Sunshine Day, a panel comprised of NCPA General Counsel Emeritus Hugh Stevens, Frayda Bluestein of the UNC School of Government and Christopher Brook of the ACLU discussed the merits of using body cameras and whether the video they capture is a public record. As of now, the state of the law is unsettled, with different judges reaching different conclusions.
The criminal records provisions of the public records law are codified at G.S. § 132-1.4. Subsection (b) defines “records of criminal investigations” and “records of criminal intelligence information,” and generally speaking, those definitions encompass records that are compiled “to prevent or solve” crimes or “to anticipate, prevent, or monitor possible violations of the law.” However, dash cam and body cam video is different from other law enforcement, investigative tools, and here is why it should be public. Videos from dash cams and body cams are little more than a bare naked, honest recording of what has taken place. They offer an un-edited and un-editorialized account of an event. Already “the circumstances surrounding an arrest, including the time and place of the arrest, whether the arrest involved resistance, possession or use of weapons, or pursuit, and a description of any items seized in connection with the arrest” is a public record under the law as it is now. But what if there is no arrest? What if the individual who engaged the police is killed in the exchange? Surely the officer who shoots and kills a suspect shouldn’t be subject to less scrutiny than one who simply makes an arrest.
No doubt the analysis is more complex inside our homes, but none of us has an expectation of privacy as we travel public streets and sidewalks. In this age, when more than 90% of adults and 97% of people under 44, have cell phones (Pew Research Center's Internet & American Life Project), we are subject to being watched, recorded or videotaped during almost all of our time in public. Perhaps you recall the Seinfeld episode in which Elaine Benes lies and says her father is ill so she can get out of going to her boss’ son’s briss and instead go to a Yankees game. Her story is blown when the newspaper publishes her picture in the sport section after she gets kicked out of the owner’s box for refusing to take off her Baltimore Orioles hat. We all run the risk that once we walk out our front door, our ability to keep our lives secret is gone. “Invasion of privacy” arguments don’t justify keeping dash cam and body cam video from public view.
Layer on top of that the fact that you and I have paid for the cameras being used by law enforcement and pay the salaries of the law enforcement officers wearing (or driving) them. It should not be left to chance that a passerby chooses to record an exchange with law enforcement and chooses to make it public, as happened in North Charleston. If law enforcement cameras record what transpires, the public should be able to see the videos taken. Five years ago our state supreme court said that a state agency must not “be permitted to police its own compliance with the Public Records Act.” SEANC v. N.C. Department of State Treasurer. Likewise, police departments shouldn’t be allowed to pick and choose which videotapes to release or when to release them. Chief Justice Burger wrote, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers Inc. v. Virginia. What could be a more plain and forthright way to see the activities of law enforcement than on a video recording? Perhaps the preamble of our Public Records Law states it best: “The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people.”