As Police Begin to Wear Body Cameras, Can They Deny Access to Footage?

bodycamLast summer a police officer in Ferguson, Missouri fatally shot Michael Brown, an unarmed black teenager. The incident sparked a nationwide debate over the relationship between police and the communities they serve, and whether the shooting itself was justified. Fueling the controversy were widely-divergent accounts of the incident, which was not recorded on video. By contrast, when a police officer in North Charleston, South Carolina later shot and killed Walter Scott – who also was black and unarmed – the officer faced widespread condemnation. That time a bystander happened to record the shooting on his cell phone. The video provided indisputable evidence that Scott was shot in the back while running away.

In the wake of those and other high-profile police-involved shootings, there have been increasing calls for officers to record their interactions with the public on body cameras. Indeed, a recent YouGov poll indicated that 88% of Americans support the use of body cams by police. Several Ohio cities have implemented the technology, and others – including Dayton and Cincinnati – are considering their use. Supporters argue that body cams will build public trust in police by increasing professionalism, ensuring accountability, and promoting transparency.

Of course, those goals depend on someone actually watching the body-cam footage, i.e., independent oversight. Consequently, as cities equip their officers with body cams, an important issue for journalists and other concerned citizens will be access to those records.

The Ohio Public Records Act – Ohio Rev. Code § 149.43 – does not specifically address footage recorded by body cams. However, the statute allows police departments to withhold any records that are "confidential law enforcement investigatory records," also known as "CLEIRs." Ohio Rev. Code § 149.43(A)(1)(h).  For a record to qualify as a CLEIR, it must pertain to a law enforcement matter, and its release must create a "high probability" of disclosing (1) the identity of an uncharged suspect or a confidential information source or witness, (2) information provided by a confidential information source or witness, (3) "specific confidential investigatory techniques or procedures or specific investigatory work product," or (4) "information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source."  Ohio Rev. Code § 149.43(A)(2).

It is uncertain how Ohio courts will interpret the CLEIR exemption in the context of police body cams. Looking to analogous cases, the Supreme Court of Ohio has ruled that routine incident reports that initiate a criminal investigation are not CLEIRs, even when they include narrative statements from witnesses and law enforcement officials. State ex rel. Beacon Journal Publishing Co. v. Mauer, 91 Ohio St.3d 54, 57, 741 N.E.2d 511 (2001). Similarly, the Supreme Court has held that 9-1-1 recordings are not CLEIRs because they are too far "removed from the initiation of the criminal investigation." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996) (emphasis added). On the other hand, last year an Ohio intermediate appellate court decided that "dash-cam" footage depicting an OVI stop qualified as a CLEIR because its release would disclose "specific investigatory work product." State ex rel. Miller v. Ohio State Highway Patrol, 12th Dist. Clermont No. CA2012-05-034, 2014-Ohio-2244, ¶19. Distinguishing the dash-cam footage from routine incident reports and 9-1-1 calls, the court said that the video was created by a State Highway Patrol trooper "to preserve a crucial aspect of his investigation [into the OVI] and information-gathering specific to a probable violation of Ohio law." Id. at ¶25. In other words, it related to a specific investigation. Of course, don’t all incident reports relate to a specific investigation?

Other states have considered exempting body cam footage from their public records statutes. Indeed, at least 16 states have introduced bills to limit public access to such footage, including Florida, Michigan, and Washington . Even South Carolina – where the Walter Scott rallied support for police body cams – recently exempted such footage from the state's Freedom of Information Act. Ohio has yet to go so far.

Therefore, given Ohio's precedent, courts here will likely focus on the content of body-cam footage, rather than its nature, in assessing whether a requested video qualifies as a CLEIR and can be withheld. The cases further suggest that courts will grapple with when an "investigation" begins under the Public Records Act. That question may be easy when an officer stops a vehicle or executes a search warrant; however, it may be difficult when an officer faces a rapidly-changing situation on patrol. Decisions likely will be fact-specific and, at least at first, difficult to predict. Thus, even as cities begin equipping their officers with body cams, the technology's promise of transparency is – at this point – unclear.

About The Author

Christopher Hollon | Faruki Attorney