Massive public records requests cause police to hit pause on body cam programs
by Bill Lucia
Taser's Axon Flex camera fastens to eye-ware and captures images (including of you!) in an officer's field of view. Credit: Credit: Taser
Steve Strachan is the chief of police in Bremerton, a city of about 39,000 located directly west of Seattle on the Kitsap Peninsula. A former King County sheriff with nearly 30 years of law enforcement experience, Strachan currently has around 60 officers in his department. About two months ago, several of those officers tested different models of the officer-worn body cameras that are becoming increasingly popular in police departments around the nation. The pilot program lasted about six weeks.
"The officers that had them said that the interactions they had markedly improved," Strachan said. "They didn't want to give them up. The officers said, 'We like these.'"
But even though his officers embraced the new technology, and the department has the money set aside in its 2015 budget to roll out a permanent body camera program, Strachan is planning to hold off for now. The reason: At least two other Washington state police departments that use the cameras have received public disclosure requests for all video footage recorded by the devices. The requests threaten to create a crippling workload for agencies with limited staff and technology. Some police officials also worry about the privacy implications for their communities if the footage is made widely available.
The video files can amount to hundreds of hours of footage and often need to be redacted to blur faces and other sensitive information, or to mute audio. The police department in Poulsbo, a city about 15 miles north of Bremerton, has received a blanket body camera video request. The chief there said that, with his current staff, it could take up to three years to fulfill.
Some familiar with the bulk public disclosure requests for video, suspect that people are trying to obtain the footage to turn it into for-profit television or Internet programming.
Along with the work they create, the requests also raise privacy concerns. "Do you want video of the inside of people's homes that have been burglarized to be available to the public?" Strachan asked. "Or an interview with a domestic violence assault victim?"
"What it really comes down to is: How can you have transparency and privacy? And I don't know if you can have both in a way that satisfies everybody," he added.
If state lawmakers do not revise public records and privacy laws to account for the new technology, officials at departments already using the devices say they might hit the stop button on their body camera programs. Likewise, Strachan said his department would not purchase cameras for a permanent program if the laws were not changed.
Notably, the Seattle Police Department is moving ahead with long-postponed plans for a body camera pilot project despite the complications surrounding public disclosure requests. Already bogged down with massive requests for in-car video, the department is looking for ways it could post most of the body camera footage directly to the Internet, and for new software to index video and automate parts of the redaction process.
The American Civil Liberties Union of Washington has tracked the body camera issue closely and has offered input at the state level and to the Seattle Police Department. The organization's stance is that body camera footage should only be used for police accountability purposes. While this approach might eliminate some of the problems related to large public disclosure requests, it would require changes to state law, and it would likely encounter pushback from some law enforcement agencies and police unions.
Doug Klunder, an ACLU attorney specializing in privacy, explained that in the organization's view, only videos related to incidents involving use of force, complaints against officers, or possible misconduct should be stored by police departments. This video would potentially be subject to public disclosure. Any other video would be deleted within a relatively short timeframe, such as 60 days. During that time it would not be released.
"The vast majority of recordings should never be used, or accessible to anybody," Klunder said.
The concerns around public disclosure, he added, are part of the reason "why we think comprehensive legislation is needed."
The ACLU also believes that changes to state law are needed to align the use of the cameras with the Washington's Privacy Act, which prohibits the recording of private conversations without consent. The privacy law includes some exemptions for emergency responders and in-car police cameras, but does not offer guidelines for body cameras.
In many major U.S. cities, including New York, Los Angeles and Washington D.C., police departments are experimenting with the cameras as pressure grows to increase transparency and accountability in local police departments. Interest in the devices surged earlier this year after an officer in Ferguson, Mo. shot and killed an unarmed teenager, setting off clashes between protesters and police.
The cameras come in different models. Some are about the size of a deck of playing cards and fasten to an officer's uniform, typically on their chest. Other cigar-shaped units can be affixed to eyewear and hats.
There is evidence that the cameras can provide benefits. A study conducted between 2012 and 2013 in Rialto, Calif. found that police shifts when officers did not wear cameras had about twice as many use-of-force incidents compared to shifts when cameras were worn. Police officials here in Washington, and in other states, also point to instances where the video technology has cleared cops of spurious misconduct complaints, and suggest that suspects behave better when they know they are on camera.
"Everyone seems to behave differently when they know they're being recorded," said Mike Wagers, the Seattle Police Department's chief operating officer.
But without proper training and implementation, the cameras are far from a panacea.
Albuquerque began issuing officers body-worn cameras in 2010. Since then, the department has undergone an investigation by the U.S. Justice Department's Civil Rights Division, which found that the department engaged in a pattern or practice of excessive force, including deadly force. In a letter to Albuquerque's mayor earlier this year, outlining the findings of the investigation, the Justice Department specifically noted the body cameras and said that it did not appear that officers were properly using the devices and that the camera program "appeared directed only at placating public criticism."
As part of a pilot program now scheduled to begin this December, the Seattle Police Department plans to equip about one dozen patrol and bicycle officers with the cameras in the East Precinct, which includes Capitol Hill and the Central District. The department will test cameras from two manufacturers, Vievu and Taser, over a roughly six-month period. The footage recorded during the Taser trial will be stored remotely using cloud-based storage service provided by Evidence.com, a division of Taser.
According to chief operating officer Wagers, the department is not banking on any changes in state law. "We just assume that it's not going to change, and we have to figure out ways to deal with it as the world exists now," he said.
The department initially planned to start testing body cameras last fall, but decided to delay the program because of legal concerns about privacy. That decision was based on a recommendation from the city attorney's office, which advised waiting until the state attorney general's office issued an opinion that could answer unresolved legal questions related to the cameras. A state lawmaker requested that opinion in February. It has not been issued yet.
An important precedent for public access to police video was set in June, when the state Supreme Court ruled that the Seattle Police Department had wrongly withheld dashboard camera footage from a KOMO-TV news reporter. The reporter filed a request in 2010 for "any and all" in-car footage the department had tagged to keep since 2007.
The court decision said that, while some video, such as footage related to pending litigation, could be exempt from public disclosure, for the most part, the department was obligated to comply with the request.
As of Oct. 31, the police department had 310,000 hours of in-car camera footage and multiple public disclosure requests for any and all of that video, records manager Bonnie Voegele said in an email last week. Wagers said the department is anticipating similar requests for body camera video. "We know we're going to get a request for 'any and all,'" he said.
The department's public records division currently has one manager and five permanent employees. Two additional temporary workers were also recently hired to help with the video requests. Over the summer, a workgroup that included police officials and other city staff began meeting to discuss the department's in-car and body camera programs. According to notes from a July meeting, which Crosscut obtained through a public records request, the department estimated then that it would take 169 people a full year to view and redact the backlogged requests for in-car video.
Any requests for body camera footage would come on top of the ones for in-car video. So the department is looking for ways to fulfill its video public disclosure obligations more efficiently. "The question is, how do we handle the redaction?" Wagers said.
Based on preliminary estimates, Wagers said that 95 percent of the body camera video could be released without any redaction. Posting this un-redacted video to the Internet, so that it is accessible to anyone, is an option the department is considering. And according to the notes from the July workgroup meeting, there have even been discussions about recouping some costs by charging a fee for downloading the video files. Courts commonly use similar fee-based online systems to provide access to documents.
What would happen to the other five percent?
That footage might be related to pending litigation, or it could contain sensitive material, such as a domestic violence victim or a child. These videos would be set aside and reviewed by city staffers familiar with public disclosure laws, who would offer guidance about how the footage should be redacted, or whether it could be withheld.
While posting all of the material online could make some people uncomfortable from a privacy perspective, Wagers said it was beyond the department's purview to decide which videos should be public. "Unless there is a change in the law, we will adhere to what we have to disclose here in Washington," he said.
The department is also looking for ways to streamline the redaction process. While Evidence.com currently offers some point and click redaction tools, Wagers said in an August email to Seattle Chief Technology Officer, Michael Mattmiller, that the Taser affiliate was also working on new automated redaction tools and that they were "willing to work with Seattle as a test bed to perfect this, further driving down the cost."
Crosscut obtained that email and others about the department's body camera program through a recent public disclosure request.
The email correspondence shows that Mattmiller contacted the Department of Homeland Security and Microsoft Research seeking information about technology that could be used to automatically blur faces, or search video based on spoken words, or other attributes captured in the footage, such as the color of a person's clothing. His inquiry was pinged around to federal agencies including the Federal Bureau of Investigation and the Secret Service.
Nobody offered a complete solution.
An FBI photographic specialist said the agency had technology to locate recognizable faces in videos, but it did not include an automated blurring tool. An older face-blurring tool was said to be slow and required double-checking. The FBI official also mentioned technology under development at a Massachusetts Institute of Technology lab that could identify footage containing people with certain characteristics, such as dark hair, or a blue coat. But the official added that this tool was not automatic and "not very effective for real operations yet."
A Microsoft researcher said that while automated blurring technology exists, it is not 100 percent accurate and that it would require "a lot of computing infrastructure" to process large amounts of data in short periods of time.
In spite of the challenges, Wagers is optimistic. "We see a path forward," he said. "We want to conduct the pilot and make sure we get it right."
But for smaller departments already using the cameras, big public records requests can pose overwhelming challenges. "We're in the process of evaluating: Do we put this on the shelf?" said Lt. Mike Johnston of the Bellingham Police Department.
Johnston is in charge of the department's body camera program, which began earlier this year. Currently, between 22 and 23 officers are using the cameras.
"We think it's a valuable program," Johnston said. But the department recently received a records request for all of its body camera video. The roughly 600 video files the department has accumulated add up to about 900 hours of footage. A lawyer and one other department employee are currently chipping away at the request at a rate of about three to five videos per day. "We have nothing to hide," Johnston said. "It's just going to take a lot of staff time."
While Johnston acknowledged that there are reasons that a journalist, a lawyer, or a person who has had a run-in with a cop might ask for a body camera video, he adds, "Because I want to sit home and be entertained isn't a good enough reason."
The Poulsbo Police Department, which began issuing the cameras about six months ago, also recently received a public disclosure request for any and all of the footage. About 14 patrol officers are currently using the cameras, according to Chief Al Townsend.
This does not sit right with Townsend. He worries about the privacy of city residents. "Let's say [someone has] a son that's having a mental breakdown," Townsend said. "It's good people on their worst day." As far as distributing video of that type of incident, he said, "I'm not sure that people want that, and I'm not sure that as the police chief of this community I want to produce those videos and then give them out to people."
The department has about 1,500 videos of various lengths. "I think we figured if our sergeant who manages the system spent an hour a day, it would take us until 2017 to produce the videos for this one request," the chief said.
"We're a small department," he added. "We can't afford to hire someone just to do public disclosure requests on body cameras."
The Washington Association of Sheriff's and Police Chiefs is currently working on recommendations for how the Legislature could change public records and privacy laws to account for the new video technology. James McMahan, the organization's policy director, declined to discuss those recommendations in detail, but said, "We've yet to find a good solution."
McMahan stressed that the association supports preserving access to public information, while also limiting the obstacles for departments equipping their officers with the cameras.
"We think actually letting people see what it is that we do could shed a lot of light on it and change people's opinions," he said. "When one public records request can flip that entire equation on its head, that's a problem."
It's a problem that Chief Townsend is now confronting in Poulsbo.
"We may end up scrapping the program," he said, "which is really unfortunate because the public loves them, we love them, it's just a great tool."
Asked if Washington is the only state that will have to grapple with the privacy and public disclosure conundrums that the cameras raise, ACLU privacy attorney Klunder said he did not think so. "I do think we're going to see this play out around the country," he said. "And people, so far, haven't thought it through."