More cops are wearing body cams. When will the footage be a public record?

In Colorado, the decision will be up to local police departments

COLORADO SPRINGS, CO — Police departments across Colorado, like their counterparts around the country, are rapidly embracing the use of body-mounted cameras worn by officers. While the move is generally applauded as a government-accountability measure, it raises a serious question: When and how will members of the public and the press have access to the footage?

Widespread use of the cameras is a relatively new phenomenon, and there don’t appear to be any disputes yet over access to the footage. But the varying policies being announced around the state are a reminder of something transparency advocates and media watchdogs have often complained about: Law enforcement officials here have broad discretion to withhold information that in other states might be public, and the courts take a deferential attitude to decisions made by local departments.

“Records of official action,” like arrest reports, are generally public. But state law authorizes local police to decide whether to release a wide range of other records on a case-by-case basis, and to withhold them if they believe release would be “contrary to the public interest.”

As a result, those decisions too often have “nothing to do with the public interest” and everything to do “with police interests,” says John Ferrugia, an investigative reporter for Denver’s ABC affiliate, KMGH-TV 7News.

Ferrugia and his colleague Keli Rabon delivered a great investigative series last year that exposed, among other things, how law enforcement agencies keep public records under wraps and the high costs public bodies charge for documents.

The station hasn’t yet tackled what might happen with body-cam footage, but Ferrugia expects more of the same. “If you thought it was tough getting car-cam video, wait until you try to get body-cam footage,” he told me. “It’s never going to be in the public interest.”

Of course, there are good reasons why some body-cam footage should not be public. Police get called to sensitive situations, and the members of the public they interact with will often have a real privacy interest. You wouldn’t want crime victims to hesitate to call the police because they feared ending up on video. And in some cases, cameras may capture investigative material that police have a legitimate interest in not releasing.

But there are concerns about leaving that balancing test up to police. “The accountability process will be controlled by those committing the abuses,” one advocate told The Denver Post for a recent story. “I feel that is a problem.”

The Post article, by Noelle Phillips, is the most detailed look at the issue I’ve seen in local coverage. But a spate of recent articles in Colorado shows how different departments are exercising their discretion. In Denver, the police chief must authorize any release of the videos on a case-by-base basis. In Fort Collins, residents can request to see the recordings of their own interactions with police; other requests are handled on a case-by-case basis, according to the Coloradoan. In Aurora, where police are expanding a body-cam program that began in 2011, the department won’t release video without an open records request and a ruling from city attorneys, reported the Aurora SentinelAnd in Colorado Springs, where a body-cam pilot program is about to begin, it sounds like policy details haven’t yet been worked out. (A possibly related side note: When I asked Colorado Springs police whether surveillance video had captured a bizarre episode that led to the death of a police dog during a training session, a spokeswoman quickly told me release of the video, if it existed, “serves no public interest.”)

Steve Zansberg, a Denver-based media attorney who represents the state’s newspapers and broadcasters and is president of the Colorado Freedom of Information Coalition, said he didn’t know of any particular dispute yet involving the body-cam footage.

But he lamented “the unfortunate state of Colorado law” that allows police to decide in many cases whether release is or isn’t in the public interest. (The situation isn’t necessarily much better for non-law enforcement records. The 2012 State Integrity Investigation gave Colorado an “F” for public access to information.)

And if you want to fight a local department’s decision, good luck. Courts here have said that once a record-holder explains why he or she has made a decision to keep something secret, judges shouldn’t second-guess it, says Zansberg. “It is an extremely deferential standard of review.”

Which is not to say that successful appeals never happen. In 2008 the state Supreme Court ordered a county sheriff to exercise discretion and release a redacted portion of a completed internal affairs investigation file to The Gazette in Colorado Springs after the sheriff had denied access to it. Zansberg recently pointed to the 2008 ruling as part of a current effort to help the Grand Junction Daily Sentinel gain access to internal affairs files in a different jurisdiction. 

Still, the patchwork of policies around the state, and the deference to police, means it won’t be a surprise if open-government advocates are frustrated by lack of access to body-cam footage at some point. And wherever you come out on the balancing test, there’s a case to be made for a more uniform policy and more rigorous reviews on appeal.

I asked Zansberg if he believes there should be a uniform policy here. He came back with this mock-up of what one might look like: 

1. The body-cam footage of any suspect being apprehended and placed under arrest, including the footage that depicts the interaction between officer(s) and the arrestee(s) that preceded or precipitated the arrest (including the audio, of course) shall be subject to public disclosure in all cases. These are “records of official action” in that they document the arrest of an individual. (If someone is arrested in a compromising position, e.g. naked or some other highly personal and embarrassing circumstance, then the video could be blurred or “blue dotted” as necessary to protect that person’s legitimate privacy interests).

2. Even when no formal arrest is made, whenever a citizen (or any person) lodges a formal complaint about police conduct while on duty, e.g., “excessive use of force,” “discriminatory treatment,” “racial profiling,” or other such conduct in violation of department rules, regs, or “code of conduct,” that video must also be available for public inspection and copying. (I would say this is true even while the citizen’s complaint is being investigated by internal affairs; it is difficult to understand how the public’s ability to view such official documentation of official police conduct could “interfere with an ongoing investigation” as is often the claim).

Beyond these two categories of “must release” videotapes, I would probably agree that all other situations should be addressed on a case-by-case basis, but there should be a strong presumption that video recordings of peace officers engaging in official on-duty conduct are subject to public inspection, barring some strong public policy reason for withholding that “criminal justice record.”

Consider that a marker for discussion, when events force this issue onto the agenda.

Meanwhile, at KMGH in Denver, reporters plan to keep on the story of police records access. “I appreciate what police do for me everyday, no question about it, but the issue is that we also have to have transparency,” Ferrugia says. “That’s what democracy is about.”

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Corey Hutchins is CJR's correspondent based in Colorado, where he is also a journalist for The Colorado Independent. A former alt-weekly reporter in South Carolina, he was twice named journalist of the year in the weekly division by the SC Press Association. Hutchins recently worked on the State Integrity Investigation at the Center for Public Integrity and he has contributed to Slate, The Nation, The Washington Post, and others. Follow him on Twitter @coreyhutchins or email him at [email protected].