By Mike Cason
al.com
MONTGOMERY, Ala. — Alabama has a new law on access to police body camera and dashboard camera videos, but it does not require law enforcement to disclose any recordings.
Lawyers who have tried to gain access to police videos on behalf of their clients said the new law does little and will not ensure the transparency needed to hold police accountable to the public.
Last week, Gov. Kay Ivey signed into law HB289 by Rep. Juandalynn Givan, D-Birmingham, which passed the House and Senate with bipartisan support.
The new law says people whose image or voice is the subject of a body camera or dash camera recording can file a written request to review the recording. An attorney, parent, spouse or another designated representative can also make the request.
The agency receiving the request would have to either show the video to the person or representative or notify the requestor that it was denying the request. The new law does not require law enforcement to give a reason for denying a request. It does say the agency can deny any request that would affect an ongoing investigation or prosecution.
Givan worked several years on the bill and said it is important because it gives crime victims, their family members, and others who are the subject of police videos an official platform to make a request to see footage. Givan, who is an attorney, said when law enforcement agencies deny a written request, they will have to be prepared to defend and justify that decision, even though they are not specifically required to in the new law.
“At the end of the day, if you’ve done what you’re supposed to do as an officer, why not disclose?” Givan said.
“So it’s about transparency and it’s about accountability. If I haven’t done anything wrong, why do I have a problem with releasing information? So that’s a question for media to ask. That’s a question for supervisors and internal affairs to ask.”
Asked to respond to the criticism of her bill, Givan said it strengthened the law by prescribing a process for access to recordings and not allowing agencies to ignore requests. She said there was nothing in the law before to help people or their lawyers obtain those records.
“It improves it because they didn’t have a leg to stand on in the beginning,” Givan said. “They had no one fighting for them to even give them an opportunity to get their feet in the door, number one. So, I beg to differ with them because at least now they have something in writing.”
“What this bill does, it gives individuals an opportunity to get their feet in the door,” Givan said. “Where the door had usually and normally been slammed on them. This gives them an opportunity for somebody to listen to them.”
Givan said her bill was not intended to provide the general public or media access to police videos. Givan said law enforcement and prosecutors have legitimate concerns about protecting witnesses, the release of evidence, and other factors that she said are critical to maintaining the integrity of investigations and prosecutions.
“What these civil rights folks want, they want the footage to be released to everybody,” Givan said. “In a perfect world, that’s what they want. In the world that we live in, I don’t agree necessarily that it needs to be released to everybody. I want it to be released to these families. And what we have now will get these families what they need and these personal representatives of these victims an opportunity to sit down with law enforcement to see what happened with that body cam footage.”
Evans Bailey, assistant general counsel for the Alabama Press Association, said the Legislature could improve public access by passing a law that favors disclosure of police videos after a criminal case has been closed. Bailey said the law should begin with the presumption that a video from a closed case is a public record and require law enforcement to show why it should not be disclosed, such as if there is a related investigation that could be affected.
“The way it is right now, it appears to be that no matter whether the case is closed or open, investigative materials are not public record,” Bailey said.
The Alabama Supreme Court ruled in 2021 that police bodycam and dashcam videos were considered investigative materials, like a detective’s field notes and witness statements. That means the videos are exempt from the disclosure requirements of the state public records law. The justices, in an 8-1 decision, said the exempt status was justified because of “the possibility that premature release of such evidence could hamper law-enforcement investigations by alerting potential suspects and disclosing the identities of crucial witnesses and/or victims, thereby rendering them vulnerable to influence, threats, or retaliation.”
Chief Justice Tom Parker wrote a dissenting opinion and said bodycam and dashcam videos should be public record because they are not the product of an investigation but are merely documentary in nature, like police incident reports, which the court has ruled are public records.
“With one sweeping stroke, today’s decision spells the end of public access to law-enforcement records that are connected in any way to an investigation,” Parker wrote in his dissent. “Hidden now from the public eye are bodycam videos, dashcam videos, 9-1-1 recordings, and anything else that is remotely connected to a crime or even potential crime. After today, as to law enforcement agencies at least, the statute might as well be titled the Closed Records Act.”
That 2021 ruling came in a lawsuit filed by Lagniappe, a weekly newspaper in Mobile, seeking bodycam footage and other materials and records related to the fatal shooting of a man by a Baldwin County deputy in 2017. A grand jury declined to indict the deputy.
Attorneys Griffin Sikes and Martin Weinberg have been involved in other high-profile Alabama cases on bodycam videos. Sikes has represented the family of Joseph Pettaway, who was killed by a police dog in Montgomery in 2018. Weinberg has represented the family of Jeff Parker, who was shot by a Huntsville police officer in 2018.
Sikes said the public at large, not just those who are directly involved in a police incident, should be able to see the police recordings. Sikes said the videos can be important safeguards for the constitutional protections against unlawful arrest and excessive force, but not if police decide who gets to see them.
Givan said law enforcement and prosecutors strongly opposed her bill when she first introduced it a few years ago. She it took extensive negotiations to craft a proposal that could pass.
Barry Matson, executive director of the Alabama District Attorneys Association, said he worked with sheriffs, police chiefs, and the attorney general’s office on the bill and that Givan was responsive to their concerns.
“It was a bipartisan effort, with the engagement of law enforcement and prosecution,” Matson said. “In our view, the rights of a victim, a victim’s family, or a defendant are paramount. This bill addresses those important issues and protects the fairness and integrity of any potential investigation or prosecution.”
Givan said she believes law enforcement and prosecutors will always have some control on the disclosure of bodycam and dashcam videos.
“However perfect this bill could have been written, there would have still been some type of stipulation under the law that says there would have been some type of discretionary clause in the bill,” Givan said. “There’s no way you would pass any type of bodycam legislation without having that.”
Givan said her bill gives lawyers and others seeking police videos a tool they did not have before.
Weinberg said he is skeptical the bill will result in more disclosure of police videos but is open to that possibility.
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