The North Carolina General Assembly, in legislation enacted this month, has sped up the process for disclosure of law enforcement recordings in cases of death or serious bodily injury. The state’s body-worn camera law was in the national news this year with focus on the timing and process for disclosure and release. Law enforcement officers, local officials, the press, and citizens were left confused and disappointed. You can see John Rubin’s blog on this here. Changes came as part of an omnibus criminal law Session Law 2021-138, Part XXI. The new law creates a process for immediate disclosure for death or serious bodily injury. This blog answers some questions about the changes. As a review, the 2016 law created twoprocesses for two types of access: disclosure and release.
Disclosure means: “To make a recording available for viewing or listening to by the person requesting disclosure, at a time and location chosen by the custodial law enforcement agency. This term does not include the release of a recording.” The law enforcement agency has authority to disclose recordings to a limited group of people, including those that are depicted in the recording, and personal representatives.
Release means: “To provide a copy of a recording.” “Recordings in the custody of a law enforcement agency shall only be released pursuant to court order.” Any person can request release.
Does the new law apply to disclosure and release? No, it only applies to disclosure.
Does immediate disclosure apply only to body-worn camera recordings? Probably not. Although the session law refers to body-worn camera recordings, the new provisions refer to “recordings,” which is defined more broadly under in GS 132-1.4A (6). It appears to apply, for example, to dash cam recordings and audio recordings.
Who can request immediate disclosure? An injured person depicted in the recording may request disclosure. In addition, a personal representative of an injured or deceased person who is depicted can also request access. Personal representative is defined in GS 132-1.4A (5). The new law modified one aspect of this definition by specifying that an attorney who is acting as personal representative must be licensed in North Carolina.
What is serious bodily injury? Serious bodily injury is defined in GS 132-1.4A (a)(8) as “injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.” This definition comes from an element of felony assault offense in GS 14-32.4.
How is a request for immediate disclosure made? The injured person or personal representative must first ask for a special form from the law enforcement agency that has custody of the recording. They must sign the form and have it notarized. The form includes notice that the disclosed recording may not be recorded or copied, or if unlawfully recorded or copied may not be knowingly disseminated. Unlawfully recording is a Class 1 misdemeanor. Knowing dissemination is a Class I felony.
The notice does not prohibit the injured person or personal representative from talking about what they see in the disclosure. So does that mean that they can talk about what they saw? Apparently so, unless the court designates some aspect of the recording as confidential.
What is the process for the immediate disclosure? No later than three days from receiving the notarized form, the law enforcement agency must file a petition for a court order. The petition can be filed in the superior court in any county where any portion of the recording was made. The agency must also deliver to the senior resident superior court judge for that superior court district or their designee a copy of the petition and a copy of the recording. This recording must remain confidential unless the court issues an order of disclosure.
What does the statute require the judge to do? The court must schedule a hearing as soon as practicable, and it must issue an order no longer than seven business days after the filing of the petition. Any subsequent proceedings will be accorded priority by the trial and appellate courts. The court must conduct an in-camera review of the recording. Its order may require:
- immediately disclosed without editing or redaction;
- immediately disclosed with editing or redaction;
- disclosed at a later date, with or without editing or redaction; or
- not disclosed to the person or persons seeking disclosure.
In determining whether the recording is to be disclosed, the court must consider the following factors:
(1) If the person requesting disclosure authorized to receive disclosure;
(2) If the recording contain information that is otherwise confidential or exempt from disclosure or release under state or federal law;
(3) If disclosure reveal information regarding a person that is of a highly sensitive and personal nature;
(4) If disclosure harm the reputation or jeopardize the safety of a person;
(5) If disclosure would create a serious threat to the fair, impartial, and orderly administration of justice;.
(6) If confidentiality necessary to protect either an active or inactive internal or
criminal internal investigation?
If disclosure of a recording is denied based on subdivision (6), the court must schedule a hearing, to be held no more than 20 business days after the issuance of the order, to reconsider whether the recording should be disclosed.
The process adds some deadlines and some additional options for how the disclosure order may be made. The factors for the judge to consider have not been changed.
If someone wants to request disclosure of a recording relating to a death or serious bodily injury, can they use the other provisions in GS 132.1.4A? Apparently not. The section about disclosure has been modified to say that recordings depicting a death or serious bodily injury shall only be disclosed as provided in subsections (b1) through (b3) of this section.
What if someone wants release (as opposed to disclosure) of a recording relating to a death or serious bodily injury, can they petition the under GS 132-1.4(g)? The statute is silent on this, so it appears that this option is allowed. Thus, a personal representative, the media, or anyone else still may petition a judge for release.
This change is clearly an attempt to improve the process of responding to the most tragic law enforcement interactions between police and the public. It’s not clear whether the balancing of interests will be much different, and it’s not clear whether the tight timeframes will improve the outcome.