Jonathan D. Jones, an instructor in the School of Communications and director of the N.C. Open Government Coalition, writes for regional newspapers about his concerns with proposed changes to open record laws in North Carolina.
The following column appeared recently in the (Greensboro, N.C.) News & Record, the Fayetteville Observer, the Winston-Salem Journal and the (Burlington, N.C.) Times-News via the Elon University Writers Syndicate. Views are those of the author and not Elon University.
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By Jonathan D. Jones – jjones86@elon.edu
One of the flaws in North Carolina’s Public Records Law is the overly broad exemption for records created by law enforcement during the investigation of a crime. Police departments and sheriffs’ offices routinely withhold all but the barest details of a crime from the public’s eye, and our courts have held that the exemption continues long after a case is closed.
But it might get worse.
If the hole that the criminal investigation exemption leaves in our Public Records Law is broad enough to drive a Mack truck through, the North Carolina House of Representatives just used some dynamite to make sure a freight train could fit.
In passing House Bill 713, the lower chamber would extend the exemption to cover all body camera and dashboard camera videos collected by law enforcement agencies in the state. They would no longer be public records available for inspection.
The bill ignores the recommendations of the Police Executive Research Forum in a report issued last year in conjunction with the U.S. Department of Justice. “PERF generally recommends a broad disclosure policy to promote agency transparency and accountability,” the independent research group wrote.
The bill ignores the attitudes of North Carolinians. An Elon University Poll conducted in February found that 90 percent of the public is in favor of police wearing body cameras, and that 63 percent believe the videos should be made available to the public.
The bill ignores one of the primary purposes of equipping law enforcement with body cameras: To build public accountability. By giving law enforcement agencies discretion to release or withhold video, we ensure that only the images most favorable to police will see the light of day.
The legislature is right to attempt to provide some clarity in how these videos are handled. The current state of the law is not particularly clear. Existing statutes do not directly address police video. The Public Records Law creates a presumption of openness unless a record can fairly be classified as qualifying for an exemption. That seems to indicate the videos are public.
Yet there are two non-binding court decisions, both from 2009, that many law enforcement agencies rely on to justify withholding the videos. In the first case, U.S. District Court Judge James Dever found a dashboard camera video was subject to the personnel privacy and the criminal investigative exemptions when he issued a protective order for discovery in a civil rights case. A dash camera had caught the 2005 shooting death of a man by a Fayetteville police officer. Because the case was in federal court, Dever’s decision is not binding on state courts.
In the second case, a UNC Chapel Hill student was killed in Randolph County during a late-night encounter on the side of Interstate 85 with an Archdale police officer. Portions of the exchange were caught on dashboard camera video, and a coalition of media outlets filed suit seeking access. Superior Court Judge Brad Long reviewed the video and declared that it was subject to the criminal investigation exemption. The decision was not appealed.
In part because of the first case, some police departments have gone so far as to declare the videos part of individual officers’ personnel files. This goes further than the criminal investigation exemption. By doing so, the agencies cannot release the footage unless the officer agrees. This classification doesn’t hold up to scrutiny very well when you consider that one of the primary purposes of equipping officers with cameras is to build public accountability. They can’t be accountable when the individual officer is in control of what information is released.
The bill that passed the House last week at least clarifies that these videos are not personnel records.
This is not an issue that North Carolina must solve alone. Many other states are considering bills that would clarify the interaction between public records law and body cameras while maintaining the important transparency function. For example, Florida’s legislature is considering a body camera bill that would only exempt from public records law videos collected in places where people do not have an expectation of privacy.
That would be a step in the right direction. Without public access to videos collected in public spaces, the accountability that body cameras are supposed to provide is entirely lost.
Jonathan D. Jones is the director of the N.C. Open Government Coalition and an instructor in communications at Elon University.
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Elon University faculty with an interest in sharing their expertise with wider audiences are encouraged to contact Eric Townsend (etownsend4@elon.edu) in the Office of University Communications should they like assistance with prospective newspaper op/ed submissions.