Freedom of Information Act (FOIA) and Video Redaction

Unforeseen challenges arise as technologies advance and law enforcement agencies around the country collect more and more video evidence. From cruiser camera video to body cameras and surveillance videos, our servers are filling up with more data than we’ve ever had to manage before.

One major challenge we all potentially face is that of being presented with a Freedom of Information request that is so broad in scope as to make it practically impossible to comply, at least within a “reasonable amount of time” as required by law. We’re all familiar with FOIA, or we should be. It’s been the law of the land since 1966. Basically, law enforcement agencies must comply with FOIA requests just like everyone else, but with some notable exceptions.

• If the records could reasonably be expected to interfere with enforcement proceedings.
• If the records would deprive a person of a right to a fair trial or an impartial adjudication.
• If the records could reasonably be expected to constitute an unwarranted invasion of personal privacy.
• If the records could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.
• If the records would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
• If the records could reasonably be expected to endanger the life or physical safety of any individual.

Imagine though, that your agency is presented with a FOIA request to produce all non-evidentiary body camera videos for the past 6 months? Aside from a legal challenge, what would you do? Sure, you can charge a reasonable fee for each video, but what if money is no object to the requestor?

Individual states are beginning to address these broad requests, particularly as they pertain to video recordings, recognizing the logistical nightmare that they can present to local government, all while trying to balance right to privacy issues with transparency in government. If yours state hasn’t addressed it yet, there are a few simple steps you can take right now to protect yourself.

First of all, and perhaps most importantly, develop a policy that authorizes deletion (preferably automatic deletion) of non-evidentiary videos after a reasonable period of time. For most agencies, this means 30-90 days. If you’ve maintained the video for that long and nothing has come of it, it’s time to make it go away. Keeping unneeded videos for any longer is a recipe for disaster. Even worse is deleting videos without a policy in place. This screams cover-up and you’d be hard pressed to disprove it.

Second, have a policy that details exactly how these requests are to be handled within your agency. Everything from who does what to how much you’ll charge for each page or disc. Having a plan in place will prevent panic when it happens to you.

Finally, be prepared. Have in your tool bag a software program that will allow quick and easy video editing and redaction. Redaction, or the blurring of faces, license plates, house numbers, etc…, is absolutely necessary in many cases, but can be a very time consuming, labor intensive process.

There are software programs on the market and available to you right now that will allow cropping, rotating, clipping, manual redaction, automatic redaction, audio redaction and more. Find the money in your budget and buy one, and become proficient in its use. Choose wisely though, and look for a program that offers automatic facial and object tracking. It will save you a LOT of time.

We always need to keep privacy concerns at the forefront, particularly those of innocent third parties and uninvolved bystanders, to include anything that might be considered private and sensitive in nature, such as medical information. The last thing you need is a lawsuit because an uninvolved and innocent person’s face inadvertently ended up on a local news story, or because you failed to redact the audio portion of a graphic description of a sexual assault.