North Carolina’s law governing the disclosure and release of body-worn camera footage took center stage last spring following the shooting of Andrew Brown in Elizabeth City. John Rubin wrote here about litigation on that issue, noting that one prominent feature of the statutory scheme was that determining matters of disclosure and release “takes time.” This session, the General Assembly amended the rules governing disclosure of recordings that depict death or serious bodily injury to require (1) that a court determine whether a recording be disclosed; and (2) that the court make such a determination within seven business days of the filing of a disclosure petition. This post will review those changes.
Background. North Carolina enacted legislation in 2016 governing the disclosure and release of recordings from law enforcement officer’s body-worn cameras. G.S. 132-1.4A provides that such recordings (along with recordings from dashboard cameras and other recording devices operated by law enforcement when carrying out law enforcement duties) may be disclosed (that is, shown) only to a person whose image or voice is in the recording or that person’s personal representative. A person to whom such a recording is disclosed may not record or copy it.
Under current law, a law enforcement agency that receives a written request for disclosure of any such recording must “as promptly as possible” either disclose the portion of the recording relevant to the person’s request or notify the person of the agency’s decision not to disclose. G.S. 132-1.4A(d). Factors relevant to that decision include whether disclosure would jeopardize a person’s safety or create a serious threat to the administration of justice. Id. If a law enforcement agency denies disclosure or fails to provide disclosure in three business days, the person seeking disclosure may seek review of the agency’s decision in superior court. G.S. 132-1.4A(e). The superior court may, if it finds that the agency abused its discretion in denying the request, order disclose of those portions of the recording that are relevant to the person’s request. Id.
Disclosure versus release. Disclosure simply permits the viewing of a recording. As previously mentioned, disclosure is limited to a person whose image or voice is in the recording or that person’s personal representative. Other statutory provisions and procedures govern the release of such a recording. Release means providing a copy of a recording. Release, which may be provided to the person depicted in the recording or any petitioning individual or entity, may be obtained only by court order. The remainder of this discussion and this year’s statutory amendments affect only disclosure.
2021 amendments. S.L. 2021-138 (S 300) enacts new procedures for obtaining the disclosure of a recording that depicts death or serious bodily injury. Serious bodily injury is defined in new G.S. 132-1.4A(a)(8) as bodily injury that
- creates a substantial risk of death; or
- causes (a) serious permanent disfigurement, (b) a coma, (c) a permanent or protracted condition that causes extreme pain, or (d) a permanent or protracted loss or impairment of the function of any bodily member or organ; or
- results in prolonged hospitalization.
These changes are effective for disclosure requests made on or after December 1, 2021.
Petition. New G.S. 132-1.4A(b2) requires that a person seeking disclosure of a recording depicting death or serious bodily injury submit a notarized form to the law enforcement agency that has custody of the recording. The form is to be created by the Administrative Office of the Courts. The agency must within three business days of receiving the form petition the superior court for a disclosure order and must deliver a copy of the petition and a copy of the recording to the senior resident superior court judge. The superior court must conduct an in-camera review of the recording and must conduct a hearing “as soon as practicable.”
Hearing. The following persons must be notified of the hearing and be provided an opportunity to be heard:
- The head of the custodial law enforcement agency;
- Any law enforcement agency personnel whose image or voice is in the portion of the recording requested to be disclosed and the head of that person’s employing agency;
- The district attorney;
- The investigating law enforcement agency; and
- The party requesting disclosure.
Considerations. The court’s determination regarding disclosure of a recording depicting death or serious bodily injury is to be guided by consideration of the same six factors that govern an agency’s determination of whether to disclose other such recordings:
- Whether the person requesting disclosure is authorized to receive disclosure;
- Whether the recording contains information that is otherwise confidential or exempt from disclosure or release under State or federal law;
- Whether disclosure would reveal highly sensitive and personal information about a person;
- Whether disclosure would harm the reputation or jeopardize the safety of a person;
- Whether disclosure would create a serious threat to the fair, impartial, and orderly administration of justice; and
- Whether confidentiality is necessary to protect an active, inactive, or potential internal or criminal investigation.
Order. The court must enter an order within seven business days of the filing of the petition. The order must instruct that the recording be: (a) immediately disclosed (as is or with editing or redaction); (b) disclosed at a later date (as is or with editing or redaction); or (c) not disclosed to the person or persons seeking disclosure.
If disclosure is denied because confidentiality is necessary to protect an active, inactive, or potential internal or criminal investigation, the court must schedule a subsequent hearing within 20 business days after the issuance of the order to reconsider whether the recording should be disclosed.
Viewing. If the court orders disclosure, the agency must disclose the recording in a private setting. The portion of the recording relevant to the death or serious bodily injury may not be edited or redacted except as ordered by the court. The person who receives disclosure may not record or copy the recording.
Penalties for unauthorized recording. New G.S. 132-1.4A(b4) makes it a Class 1 misdemeanor for a person to willfully record, copy, or attempt to record or copy a recording disclosed pursuant to new G.S. 132-1.4A(b1). A person who knowingly disseminates such a recording or a copy of such a recording commits a Class I felony.
Other changes. S.L. 2021-138 amends the definition of personal representative in G.S. 132-1.4A(a)(5) to include only attorneys licensed in North Carolina rather than attorneys generally.
Additional information. My colleague Frayda Bluestein’s thorough analysis of the provisions of the body-worn camera law as enacted in 2016 is available here. Jeff Welty’s summary of 2019 statutory amendments is here.