On July 11, 2016, Governor McCrory approved new legislation that creates rules for access to law enforcement recordings, including body-worn camera and dashboard camera records. Following a national trend, North Carolina’s law enforcement agencies have adopted these technologies, and the status of the recordings they create under the state’s public records law has been unclear. Legislators considered several approaches over the course of the 2015-16 session, ultimately arriving at an approach that allows a limited right of access only to individuals who are depicted in the recordings (and representatives of those individuals), and places with the courts the primary responsibility for allowing disclosure to the public. This blog post provides an overview of the new law, S.L. 2016-88 (HB 972), and some answers to questions about it.

Why was this legislation necessary? Weren’t these recordings covered by the state public records act already? Criminal investigation and intelligence records of law enforcement agencies are covered by a broad exception to the public records law. Under existing law (G.S. 132-1.4) this category of records – which includes most body worn and dashboard camera recordings – were “not public records.” This meant that the public had no right of access to the recordings, but the law enforcement agency could release them in its discretion.

It’s been reported that some agencies claimed that they were prohibited from releasing them in some cases because they were confidential personnel records, but some agencies released them anyway. What’s the deal with that? It’s true that under North Carolina law most records relating to public employees are confidential. Recordings of law enforcement officers acting in the scope of their duties, in my view, could reasonably have been considered to be personnel records. Given the strong policy underlying the confidentiality of employee records, I believe agencies had reason to withhold recordings, particularly in circumstances when the records would be used for a disciplinary or other legal proceeding against an officer. I first wrote about this issue in 2014 in a blog post here, noting that under the mix of legal provisions in effect in North Carolina the content that would be most sought after – evidence of officer behavior – could be the very content the law enforcement agency had the least authority to release.

So would it be fair to say that the legislation was necessary for clarification and so that agencies and the public would know what the rules are? Yes.

What are the main provisions of the new law?

• New exception: The law creates a new section – G.S. 132-1.4A – in the public records law. This section governs a new category of records called “recordings,” defined as recordings made for law enforcement purposes, specifically including body-worn camera and dashboard camera recordings. The new section explicitly says that recordings are “not public records” and they are not personnel records. Access to these records are governed exclusively by the provisions of the G.S. 132-1.4A.
• Two types of access: disclosure and release. Disclosure means listening to and viewing a recording. It does not allow recording or copying. Release means providing a copy of the recording.
• Disclosure limited to people depicted and their representatives: The head of the custodial law enforcement (typically the chief of police or the sheriff), may disclose a recording only to a person whose image or voice is in the recording, or to a specific list of people who represent the interests of such a person. An eligible person must make a written request for disclosure.
• Factors governing agency decisions to allow disclosure: The law authorizes the law enforcement agency to consider the following factors in considering whether to disclose recordings:

(1) Is the person requesting disclosure of the recording is a person authorized to receive disclosure?

(2) Does the recording contain information that is otherwise confidential or exempt from disclosure or release under State or federal law?

(3) Would disclosure reveal information regarding a person that is of a highly sensitive personal nature?

(4) Might disclosure harm the reputation or jeopardize the safety of a person?

(5) Would disclosure create a serious threat to the fair, impartial, and orderly administration of justice?

6) Is confidentiality necessary to protect either an active or inactive internal or criminal investigation or potential internal or criminal investigation?

• Court review of denial or delay of disclosure: A person who is eligible for disclosure may appeal to superior court if the law enforcement agency denies a request or fails to respond within three business days of the request. The court may view the recording and may order disclosure only if it concludes that the agency abused its discretion in denying the request for disclosure. The head of the law enforcement agency, the district attorney, and any personnel depicted in the recording have a right to notice and to be heard in the appeal.
• Release only by court order: Any person and any law enforcement agency must obtain a court order to obtain release of recordings. The court must apply to requests for release the same six factors listed in the statute regarding for consideration of disclosure, along with any other factors the court deems appropriate in determining whether to order release. The court must release only those portions of the recording that are relevant to the request, and may place any conditions or restrictions on the release of the recording that the court deems appropriate. The law creates an expedited process for release to a person who is eligible to receive disclosure, upon request by such a person or by the law enforcement agency.
• Closed Session Authority: The new law amends the open meetings law to create an additional basis for a closed session of a public body in order to “view a recording released pursuant to G.S. 132-1.4A.”

It appears that under this new law, the law enforcement agency has discretion to disclose recordings to people who are depicted (or their representatives), but it has no discretion to release them to the public. Is that correct? Yes. That is perhaps the most significant change in the law. It shifts the responsibility for public release of these records from the law enforcement agency to the courts.

The law also seems to limit internal use of recordings by law enforcement agencies. Can the law enforcement agency disclose or release recordings to individuals within the unit of government, such as city or county manager or the city council or county commissioners? The law does not clearly authorize such disclosure or release. The law requires a law enforcement agency to disclose and release recordings to a district attorney (i) for review of potential criminal charges, (ii) in order to comply with discovery requirements in a criminal prosecution, (iii) for use in criminal proceedings in district court, or (iv) any other law enforcement purpose. The law also allows the agency to disclose or release a recording for any of the following purposes:

(1) For law enforcement training purposes;

(2) Within the custodial law enforcement agency for any administrative, training, or law enforcement purpose.

(3) To another law enforcement agency for law enforcement purposes for the following limited purposes.

None of these provisions appear clearly to allow disclosure or release to the manager or governing board. In the criminal investigation exception to the public records law the term “law enforcement agency” is defined as “a municipal police department, a county police department, a sheriff’s department, a company police agency commissioned by the Attorney General… and any State or local agency, force, department, or unit responsible for investigating, preventing, or solving violations of the law.” (G.S. 132-1.4((b)(3)). This definition can apply to other departments within a local government, such as code enforcement, animal control, zoning administration, and even the city attorney’s office. (See, McCormick v. Hanson Aggregates Southeast, Inc., 164 N.C. App. 459 (2004)). The new law defines a custodial law enforcement agency as “the law enforcement agency that owns or leases, or whose personnel operates the equipment that created the recording at the time the recording was made.” Administrative use is limited to the custodial law enforcement agency. It may be a stretch to consider the manager and governing board to be part of the custodial law enforcement agency, even though they may have the ultimate authority to make decisions about personnel and other legal issues that arise from matters depicted in recordings. So it’s possible that the custodial law enforcement agency may have to seek a court order to disclose recordings with any non-law enforcement personnel, even within the unit of government affected.

What if the law enforcement agency wishes to disclose or release a recording to members of the public as part of an investigation? Does the agency have to obtain a court order? It appears so. The exceptions to the court order requirement for law enforcement agencies do not appear to allow this type of disclosure or release.

When a court orders the release of a recording to a public entity other than the custodial law enforcement agency (such as the manager or governing board of the custodial law enforcement agency, or some other unit of government entirely), what is the status of the recording in the hands of that agency? Is it a public record? Are there limitations on how it can be used or further released? The law does not address this question and the answer is not clear. The law says that the judge can place conditions on an order to release. So I suppose the judge can order that it be treated as public or non-public, or that its use is limited in some other specified manner. If the order is silent on this issue, however, it is unclear what the status of these released records would be under the public records law.

Does the new exception for viewing released recordings in closed session imply that these records are not public records? Possibly so. On the other hand, the open meetings law already provided authority to review nonpublic records in closed session (G.S. 143-318.11(a)(1)), and to plan, conduct, or hear reports concerning investigations of alleged criminal conduct (G.S. 143-318.11(a)(7)). So it’s difficult to know what, if anything, to conclude about the purpose of the new exception in terms of the status of released recordings. It’s clear, though, that the law allows them to be viewed in closed session, regardless of their status under the public records law.

The new closed session authority only authorizes viewing the recordings. May the public body discuss them in closed session? Presumably, yes. Although the new exception is narrowly worded, other exceptions, such as those relating to personnel, attorney-client privilege, nonpublic records, and criminal matters, may provide authority for discussion, depending upon the content and circumstances of the recordings involved.

The definition of recordings that are subject to the new law excludes “interviews regarding agency internal investigations or interviews or interrogations of suspects or witnesses.” Isn’t it likely that some body-worn or dashboard camera records would involve interrogations of suspects or witnesses? If so, what is the status of these records? It’s not clear whether this language is intended to refer to body-worn or dashboard recordings, or whether the intent is to exclude recordings of prearranged or other interviews or interrogations that occur in office settings. Whatever the intent, it would appear that if these records are not subject to the new law, they would nonetheless be considered criminal investigation records under existing law, G.S. 132-1.4. As such, these records would not be public records, but could be released by the agency in its discretion.

Back to disclosure for a moment. The law says that the court can order disclosure only if the law enforcement agency abused its discretion. How does that standard apply if the appeal is based on the agency’s failure to respond within three days? The law doesn’t address this question, but I can think of two possible approaches. One possibility is that the court can simply order the law enforcement agency to respond within a specified period of time. This would allow the requester to seek sanctions for contempt if the agency fails to comply. Another possibility is that the court could construe the agency’s failure to respond as a waiver of the opportunity to render an initial decision on disclosure, leaving it to the court to make a decision based on its own assessment of the statutory factors.

Does the new law create standards for the use of body-worn cameras and recordings, such as when they may or must be turned on or off, and whether an officer has a right to review the recordings during an investigation of an incident? No. The law requires law enforcement agencies that are using body-worn cameras to adopt a policy governing their use but does not dictate the content of such policies.

May a law enforcement agency charge a fee for providing access to recordings that are ordered to be released? Yes. The law authorizes the agency to charge a fee “to offset the cost incurred” in making a copy, but the fee may shall not exceed the actual cost of making the copy.

When does the law become effective, and to what records does it apply? The law becomes effective on October 1, 2016, and will apply to all requests made on or after that date for the disclosure or release of a recording.” This means that it will apply to any recordings that are in the custody of a law enforcement agency, including those that were made before the effective date of the new law.

Some have argued that the new law will increase transparency, while others say it will make access more difficult. Who is right? Since the prior law was unclear and disclosure practices were inconsistent, it’s not easy to make a before and after comparison. The legislation makes clear that the records are not confidential personnel records, so that removes a barrier to access (whether real or perceived) under the prior law. On the other hand, the new law will require members of the public and the press to file a lawsuit to obtain access. This process will involve more time and resources than simply making a request to a public agency. In this respect the change may be seen as creating a barrier to access.

Won’t there be a risk of inconsistent results, since multiple judges across the state will be applying multiple factors and may have different opinions about when to allow release? Yes, it’s possible that decisions may vary depending on the judge. But judges are accustomed to applying legal standards to specific sets of facts and may have a more objective perspective than the law enforcement agency in weighing all of the interests that are at stake.

What are other states doing about his issue? Are there any other states that have placed the responsibility of release to the public entirely in the hands of the courts? Many states are grappling with this issue. Some have focused on factors similar to those listed in North Carolina’s new law, such as limiting release of recordings that involve sensitive situations in which there is a reasonable expectation of privacy, or that would jeopardize an ongoing investigation. In some states the law requires a court to rule on release in these or other specified circumstances, but I’m not aware of any other state that places the entire responsibility for release with the court.