The General Assembly recently amended the law that governs the release of body camera footage. This post explains the change.
Background. Three years ago, S.L. 2016-88 enacted G.S. 132-1.4A (law enforcement agency recordings). The statute created a new legal regime governing body camera footage, dash camera footage, and other recordings held by law enforcement agencies. It provided that such recordings were not subject to the normal rules regarding public records. Instead:
- “A person whose image or voice is in the recording” may ask the agency for “disclosure,” that is, for an opportunity to see or hear the recording. The agency has the discretion to grant the request. If it doesn’t, the person may “appeal” the denial of disclosure to a superior court judge.
- Any person, including the news media, may seek “release” of a recording, that is, a copy of the recording. But an agency normally may not release a recording on its own. It normally may do so only pursuant to a court order from a superior court judge.
- There are a few exceptions to the rule that release requires a court order. A law enforcement agency must release recordings to the district attorney for use in criminal prosecutions, and may release recordings within the law enforcement community for law enforcement and training purposes.
Frayda Bluestein, the School of Government’s expert on public records and related matters, has a blog post answering many common questions about G.S. 132-1.4A.
The law was and remains controversial, with some opponents arguing that requiring a court order to release recordings put a roadblock in the path of transparency. My unscientific impression is that judges have issued such orders relatively freely, so the roadblock may not be as robust as some initially feared. News stories about judges ordering release are here, here, and here. Of course, the process of seeking a court order may be daunting for some interested people or organizations.
The new law. S.L. 2019-48, which took effect back on June 26, adds two new exceptions to the rule that agencies may not release recordings without a court order. The new exceptions are “[f]or suspect identification or apprehension,” and “[t]o locate a missing or abducted person.”
An example illustrates when these provisions might come into play. Suppose that a suspect assaults a law enforcement officer and then flees the scene. The officer’s body camera records the assault and produces a clear image or video clip of the suspect. The agency for which the officer works wants to enlist the public’s assistance in identifying the perpetrator. Previously, the agency would have had to seek a court order allowing it to release the clip, but now, it may do so in its discretion “[f]or suspect identification or apprehension.”
Other possible changes. There are other tweaks that some have suggested making to G.S. 132-1.4A. For example, H791 and S619 would have made clear that an agency may disclose a recording to the city or county manager or board, presumably to facilitate those entities’ oversight of their law enforcement agencies. From the information available on the General Assembly’s website, those bills don’t appear to be gaining any traction this session.