Suppose that a police officer in a North Carolina city shoots and kills a person in an encounter that began with a traffic stop. There is extensive media coverage of the shooting. The mother of the person who died tells reporters that her son was driving home from work and never made it home. She describes her son as “a hard-working boy who never caused trouble for anybody.” The police chief has seen the recording from the officer’s body-worn camera. That footage shows the suspect jumping from his car and pointing a gun at the officer. The police chief wants to provide a copy of the recording to local reporters. May she do so?
No, not without a court order.
Recordings from body-worn cameras, dashboard cameras, and other devices used by law enforcement officers when carrying out law enforcement duties are not public records. G.S. 132-1.4A(b). That means the public has no statutory right to access or view them. But in our example, the head of the agency itself wants to share her agency’s recording with reporters and the public. Nevertheless, she may not do so without a court order.
That is because a law enforcement agency may only disclose (meaning to make available for viewing or listening) this type of recording as authorized by statute. G.S. 132-1.4A(c). An agency may only release (meaning to provide a copy) such a recording pursuant to a court order, with the exception of release that is statutorily authorized for certain law enforcement purposes. G.S. 132-1.4A(g), (h).
What types of disclosure or release without court order are authorized by statute?
Disclosure to a person in the video or audio. A law enforcement agency may disclose a recording to a person whose image or voice is in the recording or that person’s personal representative. G.S. 132-1.4A(c). The person entitled to disclosure must make a written request, which may be granted by the agency without a court order. The person to whom video footage or captured audio is disclosed may not record or copy the recording. Id.
Exception for death or serious bodily injury. A recording that depicts death or serious bodily injury may not be disclosed even to this limited category of viewers without a court order. When an agency receives a request for disclosure of this kind of recording (form AOC-CV-275), it must petition the superior court for an order regarding disclosure (form AOC-CV-276). G.S. 132-1.4A(b3).
Disclosure or release for certain law enforcement purposes. An agency also may disclose or release a recording for certain law enforcement purposes without the requirement of a court order. G.S. 132-1.4A(h).
First, an agency may disclose or release a recording to a district attorney for review of potential criminal charges, to comply with discovery requirements, or for any other law enforcement purpose. Id.
Second, an agency may disclose or release a recording (a) for law enforcement training purposes, (b) within the agency for any administrative, training, or law enforcement purpose; (c) to another agency for law enforcement purposes; (d) for suspect identification or apprehension; or (e) to locate a missing or abducted person. Id.
Because the release contemplated in our scenario is not to the district attorney and is not for any of the enumerated purposes, it requires a court order.
How does the agency go about getting such an order? There are two mechanisms for obtaining a court order for the release of law enforcement agency recordings: one for a person authorized to receive disclosure and one for other types of persons.
Petition for release to a person entitled to disclosure. A person entitled to disclosure of a recording or the law enforcement agency itself may petition the superior court in any county where any portion of the recording was made for an order releasing the recording to such a person. G.S. 132-1.4A(f). The form petition is AOC-CV-270, and no filing fee applies. Id.
In our situation, however, the police chief wants to release the recording to reporters for ultimate release to the general public. Neither the reporters nor members of the general public are entitled to disclosure. Release in this circumstance requires a different process.
Release to a person not entitled to disclosure. A person not entitled to disclosure or a law enforcement agency seeking general release may file a civil action in superior court seeking the release of a law enforcement agency recording. See G.S. 132-1.4A(g); see also Matter of Custodial L. Enforcement Agency Recordings, 884 S.E.2d 455 (N.C. App. 2023) (holding that a party seeking release of recordings pursuant to G.S. 132-1.4A(g) is required to initiate such a request by filing an ordinary civil action rather than a petition using an AOC form).
The following persons must be notified of the action and afforded 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 recording and the head of that person’s employing law enforcement agency; and
- The District Attorney.
The superior court must conduct a hearing in such an action “as soon as practicable,” and subsequent proceedings must be accorded priority by the trial and appellate courts. G.S. 132-1.4A(g).
Returning to our scenario, the city, on behalf of its police department, must file an action in which the city is both the plaintiff and the defendant. The city must pay the filing fee, serve a civil summons on itself, and provide notice of the action (and subsequent court proceedings) to the police chief, any law enforcement officer whose image or voice is in the recording, and the local District Attorney. Given that the superior court may conduct an in camera review of the recording before ruling, see G.S. 132-1.4A(g), the city may elect to provide a copy of the recording to the court in conjunction with the filing of the action. After considering the eight statutory standards (including whether there is good cause shown for the release), the superior court may order release.