The original language of the “body cam bill” – now up for amendment in the Senate – gives law enforcement all the incentives to keep video secret and disincentives for the public to pursue access to videos.
Discretionary provision
As written, House Bill 1019 would create a new provision for police to use discretion to keep videos confidential.
Under the Access to Public Records Act, the Indiana legislature has always identified exceptions to the presumption that the public can inspect or copy public records by subject matter.
For example, “investigatory records” currently cover police body camera and cruiser camera video. They fall under the exception because the cameras are activated generally when police are investigating a complaint. This allows the public to question the need for discretion when video access is denied.
For example, Evansville police refused a request for video showing an interaction between an officer and a citizen that led to the officer citing the citizen for littering.
This refusal makes it harder for police to pass the “investigatory records” smell test. Does the chief really need to keep video secret on a littering citation, even if the exception is available?
As the bill is currently written, police don’t even have to defend video refusal based on subject matter. They have the discretion because it’s “law enforcement video.”
This would be like making all 8½-by-11-inch paper documents confidential or all email confidential at the discretion of public officials.
Police chiefs don’t have to justify confidentiality on any basis. If a chief merely doesn’t want to devote manpower to find requested video, review it for images that should be pixelated and make a copy for the citizen – regardless of what the video shows – the chief can do so unless H.B. 1019 is amended.
If releasing video might give his department a public relations black eye, he could deny a request.
If it shows a violation of a person’s civil rights, he can deny it.
If it shows a criminal act by an officer, he can deny it.
The only incentive for releasing video for the chief is if it exonerates an officer.
When police chiefs have this latitude, it doesn’t make police cameras a tool for accountability.
Arbitrating process
Under the Access to Public Records Act, a citizen who is denied access to a public record can seek the opinion of the Indiana public access counselor.
The access counselor will make a ruling as to whether the public agency has a legal basis to deny the request.
This process has saved untold dollars in what would have been needless litigation, which was what occurred before the creation of the public access counselor position.
Only cases under the Access to Public Records Act that now go to court are legitimate questions of how a law should be applied or citizens fighting an official who refuses to comply with either the Access to Public Records Act or Open Door Law.
H.B. 1019 – as currently written – does not provide any intermediary step. Litigation is the only option for a citizen who is denied a copy of police video.
This tilts the scales for law enforcement, which can deny access knowing that it will cost a citizen thousands to pursue litigation – a real deterrent for the public.
Burden of proof
Under the Access to Public Records Act’s presumption that records should be disclosable, the burden falls on the public agency to show a statutory authority for denying access.
Not so with the original version of H.B. 1019. If a citizen decides to file a lawsuit, the citizen has the burden to convince the judge that release is in the public’s interest, that the video’s release will not harm anyone, and that the video will not prejudice ongoing civil or criminal litigation.
And the citizen – without the benefit of seeing the video to bolster his or her argument – must meet this burden. Advantage again goes to law enforcement.
Expedited hearing
The original version of H.B. 1019 doesn’t call for an expedited hearing concerning release of video.
Litigation can take years before resolution, which can diminish the public good in release of a video.
Fees and court costs
Under the Access to Public Records Act, the burden lies with the public to enforce compliance with the law – and the same goes for the Open Door Law.
A citizen can’t go to police, prosecutor or state attorney general when the public access laws are violated. He or she ultimately must take the public agency to court if it chooses to ignore the advice of the public access counselor to release a public record.
Since the enforcement burden falls on the public, the state legislature decided to require judges to award reasonable attorney fees and court costs to the public plaintiff who prevails in such a lawsuit.
Not so with the version of H.B. 1019 passed by the House.
Even if the citizen overcomes the burden of proof in a lawsuit and the judge orders a release of the video, the judge is prohibited from awarding the successful citizen any reimbursement for the litigation.
Obviously, this has a chilling effect of anyone looking to bring possible police wrongdoing to the light of day. Not many citizens can afford the expense of a lawsuit, no matter how passionate they might be over a perceived injustice – the final advantage to law enforcement.
A side note
Supporters of the original version of H.B. 1019 point to the bill giving people in a video or family members of someone killed in a video the right to view it up to two times as an answer to accountability.
But let’s say a video shows an officer behaving badly, and the police chief meets the citizen’s request that the officer be disciplined with disdain.
The citizen doesn’t have a right to a copy of the video to show others how the chief’s defense of the officer is not defensible.
The requestor can tell people what happened, but it becomes a he said/she said with the chief saying the behavior didn’t warrant discipline.
The requestor would have to go the legal route to attempt to obtain the video to bring the bad behavior to the light of day, so the advantage remains with the law enforcement agency not wanting an embarrassing display by an officer shown to the public.
