Rarely does legislation passed by the Indiana General Assembly please every interest perfectly, and that was the case with the police body camera bill this session.
While H.B. 1019 isn’t a perfect bill from HSPA’s viewpoint, it does improve current law, said Steve Key, executive director and general counsel for the association.
“The bill still gives law enforcement the ability to deny all requests from the public or media, it but creates a mechanism where that denial may be challenged in court,” Key said. “If that happens, the burden will be on the police agency to convince a judge that the video requested should be kept confidential.”
That burden of proof was a key change made while the bill was in the Senate under the control of sponsor Sen. Rodric Bray, R-Martinsville. The Senate version also requires that any police video lawsuit get an expedited hearing with a judicial decision on the access question within 30 days of court filing.
Key said those were the major improvements made in the bill from its introduced version as authored by Rep. Kevin Mahan, R-Hartford City.
Bray and Mahan were both on the summer interim committee that examined the question of how police body and cruiser camera video should fit into the Access to Public Records Act and how long police departments should be required to maintain video footage.
After two meetings with testimony, a subcommittee drafted what became the initial version of H.B. 1019.
The draft was passed unanimously at the third and final meeting of the interim committee, but several legislators called it a “work in progress.” Mahan was asked to introduce the bill.
HSPA voiced several concerns with the original draft, which gave law enforcement all discretion on public access requests and put the burden on the public to convince a judge why the video should be released – a position contrary to the Access to Public Records Act, which states the burden is on the public agency to argue for confidentiality.
Mahan fought off all attempts in the House to amend the bill, later saying he felt like the bill’s trustee with the task of getting the bill in its introduced version to Bray, who chaired the summer committee.
Mahan rebuffed a floor amendment from Rep. Ed Delaney, D-Indianapolis, who also was on the summer committee.
With no amendments, House Democrats voted against H.B. 1019, but it passed the House 65-30.
The bill was sent to the Senate Judiciary Committee chaired by Sen. Brent Steele, R-Bedford.
He set the tone for change by starting the bill’s hearing with a reading of the Access to Public Records Act preamble, which focuses on government’s role as a servant of the people.
Steele assigned Bray and Sens. Sue Glick, R-LaGrange; Greg Taylor, D-Indianapolis; and Lonnie Randolph, D-East Chicago; to a subcommittee to amend the bill.
The subcommittee shifted the legal burden, added the expedited hearing, and outlined a presumption that certain incidents should be made available to the public.
With the amendments, the Senate passed H.B. 1019 49-1.
Law enforcement representatives bristled at the language requiring the automatic release of certain videos. Key said they didn’t want to be in a position of deciding which videos should be released because it implied that an officer was in the wrong.
They also voiced concern that the releases deprived officers of due process – making them guilty in the eyes of the public before any legal action was determined to be necessary.
Mahan filed a dissent, which created a conference committee to determine what final form the bill would take. He insisted on the removal of the automatic release section.
The other conferees, Rep. Linda Lawson, D-Hammond; Bray; and Taylor, signed off on the conference committee report.
Mahan and Bray have pledged to monitor how police agencies handle video footage requests and come back to the General Assembly with changes if the discretion to keep videos confidential is abused.
Key has voiced his concern that a sheriff or police chief who doesn’t want to be bothered with video requests could follow a policy of denying any request made – waiting to see if the requester is serious enough to spend hundreds of dollars on a filing fee and attorney costs to fight the denial.
The sheriff or chief could then examine the video and decide whether to submit or fight the lawsuit.
Either way, the person filing the case is paying the price for access.
“The sheriff or chief can say no and see if the person asking will call his bluff,” Key said. “Without a reimbursement of court costs, there isn’t any disincentive for the police to adopt a ‘just say no’ policy.”
Even with its flaws, HSPA supported the passage of H.B. 1019.
Under current law, the video from police body or cruiser cameras falls under the “investigatory records” exception, allowing law enforcement agencies the discretion to keep it confidential.
Key said there was no legal way to challenge an investigatory records denial. The only option was public pressure demanding the disclosure of the video, but that hasn’t proved to be effective.
H.B. 1019 gives the individual interacting with police in the video the right to view it twice, with an attorney if desired.
The same would hold true for the family of someone who was killed by police.
But there is no right for anyone to get a copy of the footage.
The individual or his or her family would have to make a request for a copy like anyone else, and if denied, they would have to file a lawsuit in the attempt to get a copy.
Under H.B. 1019, local law enforcement must keep videos for 190 days.