Transparency, Privacy, and Police Body Cams in Washington

Bill Lucia has a great article in Crosscut about a little wrinkle in new officer-worn body camera policies being adopted by police departments across the state:

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.

Lucia at 1 (emphasis added).

Washington has a strong Public Records Act, which provides government transparency and access to public information. But what information should be “public” is a tougher question. And the PRA does not limit access to traditional press or other supposedly “responsible” information providers. A large amount of requests would lead to ridiculous redaction and processing costs for police departments, not to mention privacy concerns:

While [Lieutenant] 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.”

Id. at 4 (emphasis added).

For example, one man has “submitted video record requests to nearly every police agency in Washington state.” Why?

“I just want to see the public start talking more about these types of issues,” said the anonymous Requester, who contacted Crosscut via social media after seeing Monday’s story. “There are definitely changes that have to be made. Right now there is not a good, solid game plan from any agency, except maybe the [King County] Sheriff’s Office.” The Sheriff’s Office, he felt, was doing a good job sharing video of helicopter operations online.

Lucia (Part 2) at 1.

Back in 2012, when the King County Superior Court first decided the Fisher case (which would eventually get to the Washington Supreme Court), I discussed this potential problem (along with a lot of other things in a waaaaaay too long post; goodness). Here is an excerpt from that post:

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Policy Considerations of the Privacy Act and the PRA

In conclusion (cue mock cheering a la Bill Clinton at the 1988 convention (cut to the 32:22 mark)), I want to add a few words about the Seattle Times editorial on the decision, the PRA, and the Privacy Act. The Times doesn’t take issue with Judge Rogers’s decision, but they don’t like the outcome:

Police departments . . . should make dash-camera videos available to people who request them under the state Public Records Act. If this violates state law on privacy, . . . the law should be changed.

Why? Well, the Times admits that it might be “unfair” to release videos showing police interactions with innocent citizens — perhaps even interactions in the privacy of those citizens’ homes — but such unfairness is necessary because of an “overriding social concern.” That concern? Police misconduct. According to the Times, “Video technology provides a kind of disinfectant. Police, like everyone else, behave better if they know people are watching.” They point out that “videos of police encounters helped to contribute to appropriate scrutiny on Seattle Police by the federal Department of Justice.”

That all sounds great, but it strikes me as entirely self-interested. I agree that the police will behave better if they know people are watching. But people already are watching. The videos exist. And those videos are already available to the people who are in the videos or who are litigating against the SPD or the City. In other words, if an individual is abused by the police, then that individual will have access to the relevant video. And if the DOJ wants access to the videos to protect Seattle’s citizens or investigate the SPD, I am confident that the DOJ can get the videos no matter what the Privacy Act or Judge Rogers says. After all, the Privacy Act prohibits making the videos “available to the public.” It says nothing about responding to a DOJ subpoena. I’m not worried about the DOJ.

No, I suspect that the Times is less concerned with individual citizens or the DOJ and more concerned with the Times. They want access to the videos, as well they should! That’s the press’s job. But why would a person trust the Times with an embarrassing video of the police breaking into the privacy of her home? If that person doesn’t want to sue and she doesn’t want to complain to the police or the Attorney General’s office or the District Attorney or some other official, isn’t it her right to keep that video private? Or does the Times‘ interest in selling papers trump her right to privacy? And even if I were to trust the Times, the PRA does not apply to the Times alone — it applies to Tosh.0, or crude people with YouTube channels, or someone trying to discredit or disgrace a rival. Those folks have no interest in protecting against police misconduct; their only interest is themselves. If we give the videos to the Times in the name of press freedom and accountability, then we have to give the videos to those other folks too.

The police have tremendous power to enter people’s homes and invade their privacy. That power, while limited, is granted pursuant to a deal we make with them to protect us and be accountable to us. When they breach that deal, as they sometimes do, we hold them accountable — whether at the polls or in the streets. But we have no such deal with theSeattle Times or some gossip blog or some guy you know from work or anyone who can make a PRA request for arrest videos. So I don’t think we necessarily be pushing to let all of those people into our homes and invade our privacy along with the police. We should be able to keep our eyes on the police by videotaping their conduct without simultaneously giving up our right to keep other people’s eyes off ourselves.

There was a story in the Seattle P-I yesterday stating that the City is now working to change the law to allow for the immediate release of the videos — presumably for accountability purposes. That’s good on the City. But I hope any change in the law would also serve to protect the identities of private individuals in the videos. Perhaps there could be mandatory blurring of individuals’ faces or other identifying features in all released videos. And perhaps there could be a procedure by which an individual receive (1) notice and (2) an opportunity to object before a video in which he is depicted is released, regardless of face blurring. For example, I would want to be able to object to the release of a police video taken in my apartment, even if my face were blurred out. Anyway, a change to the law is a start, but for now we’re stuck with the laws we have.

*   *   *   *

So that’s that. I hope Crosscut keeps covering this story, because it’s an important one.

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