Under a draft approved by an interim Indiana General Assembly committee, the public and the press would be required to file a lawsuit to view police body camera footage that a law enforcement agency doesn’t want them to see.
The only saving grace of the unanimous vote of the Interim Committee on Government was that all the legislators seemed to agree that Preliminary Draft 3259 is a work in progress, said Steve Key, executive director and general counsel for the Hoosier State Press Association.
“Body cameras can serve as an accountability tool for interactions between police and citizens,” Key said. “If the public can’t see controversial footage, it becomes merely an exoneration tool for law enforcement agencies.”
The key sticking point: Who has the burden of proof in determining whether video should be made available to the public?
Under both the Open Door Law and Access to Public Records Act, the burden falls on the government unit that wants to either meet behind closed doors or deny access to a public record. Officials must cite the state statute that allows them to deny a record request or meet in secret.
Preliminary Draft 3259 flips that premise.
It gives law enforcement agencies the discretion to keep recordings from body cameras and cruiser cameras confidential.
If a newspaper or private citizens want to challenge a denial, they must file a petition with a trial court judge seeking an order allowing them to inspect or copy the video.
The burden falls on a newspaper or citizen to convince the judge that:
• The public interest will be served by allowing access to the footage.
• Access will not create a significant risk of substantial harm to any person or the general public.
• Release of the record does not create a prejudicial effect on ongoing civil or criminal proceedings.
And the newspaper or citizen must make these arguments without the benefit of seeing the video in question.
Key said the language makes it easy for police departments to deny all video requests because they don’t want to be bothered with the expense and time involved in reviewing footage and making redactions that might be necessary, for example, to protect the identity of an undercover police officer.
Police departments will know newspapers and citizens would have to spend $3,500 to $15,000 to petition a court to see body and cruiser cam footage – a cost that would likely stop many efforts to obtain the video.
If the requester calls the police department’s bluff, police officials who don’t want litigation can always change their mind and release the video after the petition is filed.
Under the state’s open meeting and public access laws, the public agency pays for reasonable attorney fees and court costs if a requester wins in court. Not so with the body cam preliminary draft.
Newspapers or citizens who request the video must foot their legal bill even if a judge rules in their favor.
Key believes the only time law enforcement will voluntarily give access to footage is if the video exonerates the action of police officers.
There is no incentive for a law enforcement agency to release footage that shows officer misconduct. The agency doesn’t want bad publicity or to incite protests against police brutality, Key said.
HSPA intends to lobby the legislature to alter the suggested process to obtain police videos when a bill is introduced in the 2016 legislative session.
Time constraints forced the interim committee to vote on the preliminary draft as it was written or have no recommendation for the General Assembly. Several committee members expressed reservations about the draft, Key said.