Another element that is creating additional dialogue around the use of cameras in law enforcement, is public records requests. We will address Freedom of Information Act and State Public Records Requests. But keep in mind that State requests do vary, so we won’t spend a lot of time discussing each set of circumstances.
Freedom of Information Act
In 1967, the Freedom of Information Act was passed to serve as a tool in the transparency of federal government. And it only applies to federal agencies, which is a great thing for most municipal law enforcement agencies.
However, there is a key part of the Act that we need to be aware of. State and local records that are somehow connected to a federal record of any kind are subject to FOIA requests. And there’s no way around servicing the request, unless there’s an interest in fighting in federal court over the matter. The courts have created some exemptions to FOIA requests, but they’ve been clear that the nine that exist are to be viewed narrowly, and not widely applied to records, no matter what their purpose is.
Those nine exemptions are as follows: National Defense/Foreign Policy, Internal Agency Rules and Regulations, Disclosure Exempt by Law, Trade Secrets, Inter/Intra-agency memos that would only be available in litigation between the two agencies, personnel and medical files that create an invasion of privacy, law enforcement records*, internal reports prepared by any agency regarding regulation or supervision of a financial institution, and geodata concerning wells.
*The court spent a great deal of time spelling out how this exemption works, and it applies to how State records will be viewed if there is a federal nexus. The records will remain secret if:
- Would reasonably interfere with any enforcement action
- Would deprive a person to a fair trial
- Reasonable expectation that the dissemination would lead to an invasion of privacy
- Would compromise a confidential informant of any kind -Would disclosure law enforcement operations and techniques that would promote circumvention of the law moving forward
- Reasonable expectation to place any person’s life in danger
While any of the above criteria relating to law enforcement exemptions would be easy enough to argue, the problem is will the court accept it. By and large, it really depends on the federal judge the item in question is being argued before. But when this was originally drafted, the intent was to tighten, not loosen, the standards by which government records could remain hidden. Meaning that the desire is for records to be available rather quickly, and if not immediately, there had better be good reason, and a specific plan stating when such records would be made public.
A clarification before moving on, this particular topic is best handled by a records specialist who receives training in this subject on a routine basis. Individual officers should not be making decisions as to when documents can be released and when they can’t be released. We’re covering this topic as it pertains to cameras.
Keep in mind that anytime you send a record to a federal agency, or anytime a federal agency has established a connection to your investigation, you may be subject to a FOIA request. FOIA requests must be furnished in 20 days. If they are not, the responsible parties are subject to litigation in the nearest federal district court. Records Management is a specialty position and requires regular training and experience for the various requests to be honored correctly. Ensure that from your end you are following your stated agency policy.
State Public Records Request
Clearly, between the various State and Territorial governments in the US, the laws on records vary greatly. As an example of how specific, and how general, the law can be in each jurisdiction, we reviewed the laws in Hawaii, Iowa, and Mississippi. The results are at sometimes bizarre, and sometimes typical. For example, in Mississippi and Iowa the definition of who can request records is “anyone,” without much definition of who that anyone is. It’s fair to say that the use of that term is to be applied broadly. Hawaii grants the same permission, but they go to the extra mile to stipulate that foreign governments can request records when they are involved in civil or criminal action, and requestors can remain anonymous, and they also state that intra-agency communications are exempt from the law, with some exceptions. The point about being anonymous is interesting, and we’ll try to discuss that meaningfully at a later point.
All three States provide in the law that there is no limitation to the use of the information by private parties.
We mention these portions of these laws to highlight the key point of these requests: They can happen at any time, can be extremely broad in nature, and the person requesting the documents does not have to provide their information.
What this means to you as a law enforcement officer, is that anything you do is subject to these requests on a constant basis. Whether it’s filling out a call for service, a crime report, a probable cause statement, and for our purposes, a video from any device employed by your agency, it can be requested by the public, and in today’s age you may as well treat every day like the public is going to watch, read, and listen to it intently.
The next few paragraphs will provide known examples of the most broadly on-going records requests known to us at this time to give you an example of what you’re up against.
Police Video Requests
We’ll be highlighting more examples from Washington State, because they simply have a lot of on-going problems when it comes to the general public, perceptions, and video.
In what can only be described as a tech-oriented citizen going full-bore attorney, a software developer in the Seattle area, Tim Clemens, decided he wanted the State law regarding public records to be changed, and his method of doing that did not involve lobbying, sending letters, or even drafting language and sending his concerns to his area representation. What he did do was write thousands of anonymous records requests, specifically citing the request for “any and all video” and left no other criteria. The results of this varied from each agency, but two completely cancelled their body camera programs simply because of this request.
A number of agencies decided they didn’t have the manpower to cover the request, and reached out to the man and negotiated a compromise. One of those agencies, the Tukwila Police Department, ended up sending a video out that has caused quite a commotion.
In the video a young male initiates a short pursuit with an officer, which ends at a dead end. The officer, practicing excellent cover and verbal command techniques, tries to engage the man to exit the vehicle while keeping his hands raised. The male complies at first, but then puts his hands down inside the vehicle. After some time, the man exits the vehicle, and goes through what can only be described as the hardest time following a single command ever recorded. The officer instructs him to place his hands on the rear of the vehicle, but just as the man does it, he takes them back off, and this repeats several times.
Sometime after, backup officers arrives and the primary officer makes the following statement; “Tase him, he doesn’t listen.”
It’s a statement that sends a terrible message to the public, and only encourages misinformed perceptions to be glorified. It’s clear the officers were trying to coordinate their efforts, and this was probably a verbal slip up, it’s a mistake that could happen to anyone.
But the point here is that an officer likely in their worst second, ended up being broadcasted on YouTube, and it wasn’t because of their specific behavior, or that even a complaint was filed. What further led to publicity of this incident was that Tukwila PD was in the midst of settling two lawsuits stemming from excessive use of force complaints from years prior, both involved an officer who was no longer employed at the time of the video that was released.
Anything and everything produced can be involved in a situation like this, so while safety is a priority, if this episode teaches us anything, it’s to choose our words carefully. On a side note, the YouTube account associated with this person seems to be targeting Spokane (WA) Police most recently, with their broad records request.
In another twist, Seattle Police has now employed Clemens to redact all of their body worn camera footage, and place it onto their own YouTube channel called SPD BodyWornVideo. Clemens doesn’t agree with the redactions, but SPD is concerned, like everyone else in law enforcement, with what kind of privacy liability is held in each video, especially from an innocent person walking past a particular scene.
Another YouTuber from the Seattle area has slowly been posting multiple dash camera recordings from single incidents, along with a spattering of traffic stops, and other single officer responses. A number of the videos are from previous complaints lodged with Seattle’s Office of Professional Accountability, where a decision about each officer’s actions has already been made in an official capacity. The purpose of posting these videos, is not completely certain, other than antagonizing the public.
If you look at the videos, there are countless examples of good tactics, unfortunate circumstances, and a lot of typical calls that a major city would experience in a given 24-hour period.
The few that stand out are a three-part series of an entire shift with Officer Salvatore DiTusa, who apparently is a boxing promoter in his spare time, and spends a fair bit of his shift driving around and talking about his client and the details of some recent fight cards. He also picks up his friend, Sergeant Avila, who he drops off for an overtime detail. In interviews after the incident, DiTusa stated he didn’t understand how the camera worked, and didn’t realize it was on for nine straight hours.
He also self-generates activity once, by telling a panhandler they are sitting in an unsafe spot, and also goes to one call to tell a person collecting petition signatures that they’ll have to move to another part of the store they are standing in front of.
And that’s all the activity he accomplishes in nine hours. Other than a gigantic complaint fest that he and Avila spark about their agency, and some co-workers off duty activities, that’s literally it. It’s fair to say that this particular recording does not catch Seattle’s finest at their finest. And we all know the guy close to retirement who doesn’t care. DiTusa is that guy. Hopefully full time boxing promotion is friendlier to him. To DiTusa and Avila’s credit, they have since apologized to their co-workers whom they disparaged in their diatribe about their agency.
This YouTube account seems to be unrelated of the Clemens account mentioned previously, and it only involves dash camera requests, which apparently SPD doesn’t see as falling under the same privacy considerations for redaction as their stream of body camera footage. The commentary from citizens on certain videos is overwhelmingly juvenile, whenever they think something the officers are doing is wrong. But then any video that has no significant action draws nothing. It is clear that the typical brainless crowd is drawn to these videos. And as easy as it is to dismiss that group, it’s also an important element to consider. The longer that audience plays expert by looking at videos that they have no professional context from which to analyze from, the longer they have to cultivate their own audience that will listen to them, before they listen to you. See where this trouble begins to lead us?
The specific lesson learned here is that if you have body or dash camera footage, before the flood of records requests hit your clerk’s desk, you need to have a communication plan in place to address the videos as a whole, and then each video sent out to the public. If you don’t, you’ll end up being thrown to the wolves like officers in Seattle currently are. SPD leadership has been quoted as wanting to be at the forefront of technology and data as it relates to policing. I’m sure they will be one day, but as it stands they are floating in unchartered territory, and they’re not winning the fight.
A guy who is hell bent on instigating a bad time with police known as Tom Zebra is challenging police all over the great Los Angeles, particularly Hawthorne.
Tom Zebra is his alias, his real name is Daniel Saulmon. He lives in the area known as “South Bay,” which encompasses El Segundo, Hawthorne, Lomita, Torrance, Gardena, and numerous other communities directly south of Los Angeles. He started filming the various agencies on traffic stops and crime scenes in the early 2000’s, and YouTube only kept his niche itching. The key here is that Saulmon has made it his business to publicize police activity, long before the community, and politicians, were calling for it. Some suggest his work contributed to that viewpoint.
With a well-developed channel, and website, called “Mistaken Bacon,” he’s developed a significant audience, and has even allowed die-hards to come out with him while he’s filming. He sells t-shirts with his logo of a pig in a stereotypical police uniform with their middle finger. Clearly he has a slant. Mr. Saulmon self-describes as being unemployed, but seems to have enough views on his YouTube channel to amass advertising revenue. And while his videos are not specifically addressing police using cameras, it’s another perspective on the issue.
When agencies are using cameras for their purposes, one of the things lost in policy is that virtually the same laws that allow agencies to record are the same laws that allow citizens to record. Mr. Saulmon has been arrested several times while recording, but a number of those charges have been dismissed, and there was even one incident where he sued and the agency was held liable for the actions taken against him. He stands on a very thin line. Remember, the Johnson opinion threw out the 1st Amendment arguments that were presented, but kept the 4th Amendment arguments and that’s how that federal court formed their opinion. And Judge Kearney informed us of no general 1st Amendment right being granted to people to record police activity ambivalently. But he did assert that decision by adding that people who were recording because they are critical of police may have legitimacy to their reasons, and therefore they have 1st Amendment protections. Saulmon is usually filming a third party under investigation for an offense, but because he maintains a terse verbal stance with police, he’s making it clear throughout the recording that he’s carrying a slanted view towards police because of whatever action they are taking. If an arrest is attempted of Saulmon, his 4th Amendment protections take effect, so either way, his camera has just as much right to be there as a camera employed by an agency.
There are plenty of people and organizations throughout the country with goals like Saulmon. CopBlock is widely known, however while some of their members conduct similar activities as Saulmon, many of them are not interested in filming law enforcement, and would much rather hide behind their computer screen and wax poetic over videos like they know what they’re talking about.
Saulmon should study the law voraciously, just as we do, because he may create a situation that places an officer’s safety in jeopardy, without intending to. The results of which could be disastrous.
The lesson here is to have a plan for “camera activists.” They sprout up all over the place, and the more professionally we can interact with them, the less influence they can carry. The less influence they have, the easier our work becomes.
We learned that FOIA requests only affect us if there is a nexus to a federal agency. We also learned in that block that some federal documentation has better protections than any document we submit to a federal agency. Everything from digital evidence, grant applications, camera footage, evidence receipts, case reports, and everything in between can be requested via an FOIA, if a person can prove there is a connection.
We learned some basic definitions of State Public Records Laws, and in both federal and state records, we should have people who have specific training in records retention, and dissemination. Records are an easy thing to botch, and an even easier thing to be sued over.
We also went over some examples of how digital evidence is being disseminated throughout public channels, particularly YouTube. There are plenty of other public video sites out there, but clearly YouTube has a massive audience, and with that comes influence.
Hopefully there are some good takeaways in this block regarding policy. With any luck you’ve been reading these posts and finding new things to direct attention to, in an effort to streamline your operations, and having your best foot forward when the day comes that certain citizens flash sunshine on your agency.
Our next edition will talk about good policy and bad policy decisions, and we’ll try to cover one or two of the lingering questions that have been floating throughout this examination.
Be safe out there!