By David Moser, Esq.
In today’s age of viral internet videos, police body-worn camera footage depicting real-life law enforcement interactions with the public may show up on a person’s daily social media feed.
Ohio recently enacted new legislation providing for the public release of police bodycam videos, with certain exceptions.
The Ohio law recognizes and addresses the hot-button topic of police bodycams – a subject that often draws contrasting opinions, especially concerning public access to this footage. Several media outlets and citizen advocacy groups propose that bodycam video footage constitutes a public record and should be disclosed in most cases.
On the other hand, law enforcement agencies and privacy rights advocates often argue that these videos are confidential and should not be released to just anyone on request, particularly when the videos detail open and ongoing criminal investigations.
The Ohio law seeks to balance these interests and, so far, has been well received by both sides.
Law amends Ohio’s existing public records act
Signed by outgoing Governor John Kasich in January, the law is an extensive amendment to Ohio’s existing public records act and makes all police body-worn camera footage generally subject to public disclosure, a win for transparency advocates. At the same time, the law creates a list of enumerated exceptions under which police bodycam footage is exempt from disclosure due to certain highly sensitive and personal privacy interests. A sampling of the specific type of footage restricted under the new law is as follows:
- The image or identity of a child;
- The death of a person or a deceased person’s body (including a police officer or emergency responder), unless the death was caused by a police officer or the decedent’s estate consents to its release;
- An act of severe violence against a person, unless the act was effected by a police officer;
- Nude bodies, unless consent is obtained;
- Protected health information;
- Personal information of a person who is not arrested, cited, charged, or issued a warning by law enforcement;
- Proprietary police contingency plans or crime prevention tactics;
- Personal conversations between officers, or between officers and members of the public, that are unrelated to any law enforcement activities;
- Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence; and,
- The interior of a private residence or private business, unless the residence is the location of an adversarial encounter with, or use of force by, a police officer.
The new legislation also provides recourse for any individual who requests bodycam footage but is denied the same based on any one of these exceptions. A specific provision allows for citizens and media outlets to appear before a court to argue that the public interest in releasing such footage outweighs any competing privacy interests. A court would then make the final decision about whether or not to release the video.
Updating laws to reflect new technology
Compared to other states, this new legislation makes Ohio somewhat of a trailblazer in confronting public access to police body camera footage. Many states simply defer to their existing and unchanged public records laws, which have not been updated to reflect the modern technology of body cameras. In those states, access is regularly prohibited under the often-cited confidential investigatory record exception. (That exception is malleable and subject to interpretation).
Other states have completely exempted bodycam videos as non-public records, shutting the door on any public disclosure at all. This approach is becoming increasingly outdated, particularly when bodycam footage is helpful to police agencies in justifying arrests, supporting uses of force and even identifying suspects who remain at large. Accordingly, release of this footage is a positive for the public and police alike. Ohio joins only New Hampshire with a similar law expressly regulating the release of these videos.
Reaction to the new measure so far has been widely positive. Communities and law enforcement agencies across the country recognize the importance of body cameras, and that they are likely here to stay. An invaluable tool for gathering evidence, supporting police measures, exposing improper conduct and training officers, the importance of public access to these videos is evident.
The Ohio law, and any state laws that may soon follow suit, strikes a balance between police transparency and privacy rights of the recorded individuals. With the advent of bodycam footage, it is crucial that local laws clearly address disclosure and public access.
About the author
David Moser is an attorney with Isaac, Wiles, Burkholder & Teetor, LLC in Columbus, Ohio. A former county and city prosecutor, Moser is passionate about law enforcement topics ranging from misdemeanor enforcement to civil liability involved with uses of force. Moser practices in the Public Law Group and can be contacted for further questions at DMoser@isaacwiles.com.