“White Paper” Seeks Body-Cam Access

As New Haven cops prepare to join colleagues across the country in wearing body cameras, a new white paper from Yale Law School sounds the alarm on the importance of public access to the footage that those cameras will capture.

Six Yale Law students authored the white paper, Police Body Cam Footage: Just Another Public Record, urging lawmakers to treat police body camera footage like any other public record subject to Freedom of Information laws in their state.

The paper arrives just as New Haven has wrapped up a 90-day body camera pilot program to test out several different models of body cameras, according to Lt. Racheal Cain. She is in the process of preparing a report to submit to Chief Dean Esserman about the merits of the three cameras officers tested from Sept. 1 to Nov. 30. At that point the department will decide which model to purchase for all officers.

Departments in some other cities have confronted heavy demand for citizen access to footage captured by body cams. New Haven received no Freedom of Information requests for footage during the three-month pilot, Cain said, but had there been a request the department would have followed state law to comply with such requests.

That would have been the right move, according to the authors of the white paper, because Connecticut has a good law when it comes to access to public records.

Divya Musinipally, a Yale Law student who graduates in 2016, said public access to police body camera footage has flown under the radar even as the national conversation around police brutality has continued unabated. When she and her fellow students realized their wasn’t much talk about the value of public access to the records that police officers would be creating every day through such programs, they decided to formally raise their concerns.

“There were a lot of other actors already talking about the privacy implications and the funding and how exactly the policies should look and of how body cams should be used,” Musinipally recalled. ​“Our clinic focuses on information access and FOIA [Freedom of Information Act] work, and we wanted to add our voices to the conversation on that topic.”

The paper is aimed at law and policymakers particularly in states that are considering bills to exempt body camera footage from public access, even if their state FOI laws already treat certain police records including dashboard camera footage as public records.

Fellow Yale Law student John Ehrett (pictured) pointed out that Connecticut isn’t one of the states where legislators are looking to exempt police body camera footage from public access.

“Washington and Connecticut have policies that we found more favorable in large part because those states have ways of limiting the kind of exemptions from public records requests that more appropriately say ​‘If this kind of footage is involved in an imminent law enforcement investigation or could put individual people at risk, or individual police officers at risk, then you can redact their involvement to some degree,’” said Ehrett, who graduates in 2017. ​“But that’s not a blanket presumption.”

The white paper makes specific note of both Connecticut and Washington State laws as good examples for states to follow because they lean toward public access with a small number of exemptions. But states like California and New York have gone in the opposite direction by creating laws that have sweeping exemption policies when it comes to their police departments.

Though their paper doesn’t cover the state of Illinois, one of the most recent cases to enter the national news and spark a federal investigation has come out of that state and raised crucial question about police brutality and access to records.

Seventeen-year-old Laquan McDonald was shot to death by a Chicago police officer in 2014. A year after his death, a judge ordered the release of dash cam footage showing his killing that has led to allegations of a cover up by the police department and ultimately the city’s highest official, Mayor Rahm Emanuel. The Justice Department has launched an investigation.

Musinipally said the goal of the white paper is to ensure that there are few legal fights over whether to release footage like the McDonald shooting.

“I think what our goal would be that you wouldn’t even have to go through the litigation of getting that footage,” she said. ​“That the presumption would have been, ​‘There is this dash cam footage, there was a shooting, people should have access to this video.’ It’s good that a judge did find that it should eventually be released, but that was a year later. There’s clearly still other footage that’s being held back. It’s been alleged that there was a cover up. These are all the exact harms we are trying to warn against when states are trying to limit access.”

Ehrett said that some circumstances would warrant the consideration of whether the footage might be too graphic or compromise the privacy of a victim’s family, or even a police officer’s privacy. But technology exists to guard against that and allow the application of ​“redaction principles” that are similar to those used when redacting documents, he said.

Munsinipally added that if there is a question of whether footage should be released, a judge is the right person to make the call and do so in a timely manner.

“A court can do the right balancing tests of what are the privacy considerations, what are the law enforcement considerations, and what are the public access considerations,” she said.

Ehrett and Musinipally pointed out that public access is not just good for the average citizen, but also good for police officers.

“Having access to that footage is something that really works to promote departmental interest,” Musinipally said. ​“In 93 percent of cases, dash cam footage ends up exonerating police officers.There is just this incredible advantage that this has to every one involved and not just the people trying to say that there was a wrong committed, but also to departments trying to assess correctly what happened and how they can make their own policing practices more effective. An access-based model is something that works to everyone’s interest.”