With more police wearing cameras, the fight over footage has begun in Florida

MIAMI — As more police departments equip their officers with body-worn cameras, the question of who gets access to that footage—and at what cost—is fast becoming a new frontier in open-records policy.

Here in Florida, with one of the strongest public-records laws in the country, that frontier may soon be shaped by a couple of factors. One is a lawsuit filed by a Sarasota attorney against the local police department over fees for release of video footage. The second is a bill in the state legislature that would create new exemptions in the public records law when it comes to body cameras. The details of the suit and the bill are unique to the Sunshine State. But in the wake of Michael Brown, Eric Garner, and the Justice Department’s scathing report on biased policing in Ferguson, MO, as hopes for greater police accountability and improved community relations are pinned in part on wider use of the cameras, both warrant close attention.

The lawsuit was filed by Michael Barfield, vice president of the American Civil Liberties Union of Florida, who asked the Sarasota Police Department for the 84 hours of video recorded by officers wearing body cameras during a test of the equipment last year. Though some states grant police broad discretion over when to release video, the Sarasota department recognizes the footage is subject to disclosure under Florida’s records law.

But local officials told Barfield he would have to pay $18,000 for DVD copies of the recordings. As the Sarasota Herald Tribune noted, that amounts to $190 per hour of video. The charge includes $5 for each DVD, far more than blank DVDs cost. But the real cost is in the 458 hours the police department estimates it will take to review the videos and redact anything that might be exempt from the records request—an estimate that works out to more than five hours of time for each hour of footage.

Barfield is no stranger to disputes over public records or police policy in Florida. He told me he asked for the video after determining that the Sarasota Police Department hadn’t done any sort of review of their first test of the cameras. The department is rolling out more cameras, and calling that a trial run as well.

“It was concerning to me that there had not been a quality study done, no white paper, no review of how it worked,” Barfield said.

When he got the department’s response, with the estimated charges, he decided it was time to sue.

“It seems as though their attitude is to make it as difficult as possible for the average citizen to access public records,” he said. “I’m not an average citizen. I’m pretty well-versed in Chapter 119 [Florida’s public records law]…. If they want to make law on this, okay, let’s get clarification.”

Jan Thornburg, a spokeswoman for the city, did not return my call Friday, but she told the Herald-Tribune the city’s estimate is so high because Barfield’s request is extensive. “Most video requests, we imagine, will be specific in nature and much, much shorter, thus less costly,” she said.

Though the city’s proposed fee may not be reasonable, it is true that—as groups like the ACLU have noted—officer-worn body cameras present some unique issues, potentially bringing police accountability into tension with the privacy rights of private citizens (and depending on how they are deployed, police officers themselves).

“This is uncharted territory in many ways,” said Noah Pransky, an investigative reporter with WSTP in the Tampa Bay area, who has been reporting on police department video policies and the debate over body-cams since last year. “There’s no case law on it yet. If it takes time and resources to dig up this video, it may cost more than people would expect.”

Departments that use dashboard cameras are accustomed to releasing the footage, and typically do not review every second, Pranksy told me. But officers wearing body cameras will sometimes go inside people’s homes and may interview crime victims at their most vulnerable point.

“There are obvious privacy issues,” Pransky said. “We don’t want people to be able to make public records requests for video taken inside your home. I can appreciate what Sarasota police are struggling with.”

At the same time, the charges to review the footage must be reasonable. Pransky called the Sarasota estimate “absurd”—and he’s right.

Meanwhile, a bill currently making its way through the Florida Senate addresses those privacy issues, exempting from the public records law body-cam footage shot inside a private home, as well as anything shot inside a school or hospital or during a medical emergency. The bill also allows someone who is videotaped to get access to the footage. Those exemptions are understandable, according to Sandy Bohrer, a media law attorney in the state. (When I worked at The Miami Herald, Bohrer represented me on a number of occasions.)

The current draft of the bill has problems, however. For one, it exempts all video taken of any child younger than 14—a provision that would seem, as written, to exempt from release footage in an incident like the controversial case in Cleveland where an officer shot and killed a 12-year-old.

“To the extent it attempts to exempt from the public things that occurred in public places, I think it’s overbroad and unconstitutional,” Bohrer said.

The bill’s sponsor, state Sen. Chris Smith, told me Friday that he is planning to amend the bill to take that provision out. Properly amended, the bill could be a good step, giving police departments clear guidelines while protecting the privacy rights of civilians.

“I want the cops to keep the cameras on at all times,” Smith explained. “I don’t want cops to turn it off because someone was naked or because they’re in someone’s home.”

The bill also does not account for the potential value of the video in an internal investigation. Smith said he is crafting an amendment to account for that use, after getting feedback from several South Florida police chiefs. And public defenders have urged him to extend the time that the videos will be archived, which he says he is also planning to do.

The current language of the bill requires law enforcement agencies to create a policy for deleting video that is not related to a criminal investigation within 90 days—and, Bohrer said, it would also allow much footage to be deleted almost immediately, making the cameras useless.

The legislative maneuverings and the lawsuit in Florida are part of a broader debate taking place over the body cameras, which advocates, including President Obama, believe can increase police accountability while improving relations between the police and the communities they serve. Officials in Oakland, CA, found that use-of-force incidents dropped dramatically once every officer was outfitted with a camera.

But for that promise to be fulfilled, departments must have clear policies about the cameras’ use and about how video is archived and when and how it is released to the public and the press. A court-appointed monitor overseeing the troubled New Orleans Police Department found the agency was not recording most of its use-of-force incidents, an approach that “creates justified suspicion among citizens.”

Refusing to release video footage will have the same effect. That’s why a report by the Police Executive Research Forum for the Justice Department concluded that agencies need to release the footage, with “certain, limited exceptions.”

“[B]ody-worn camera video footage should be made available to the public upon request—not only because the videos are public records but also because doing so enables police departments to demonstrate transparency and openness in their interactions with members of the community,” the authors of the report wrote.

Here in Florida, there’s reason to be optimistic those values of transparency and openness will be upheld, with appropriate limited exceptions. Refusing outright to release the footage is clearly against state law. The proposal to create specific exemptions for videos is drawing close attention and debate. And state courts have consistently ruled against public agencies that imposed unreasonably high charges for the work of producing a public record. It’s hard to imagine a court agreeing that Sarasota police need five hours to review and redact every single hour of footage Barfield has requested.

Kudos to Barfield for taking this issue to court, and to the Herald-Tribune for putting it on the front page. Journalists around the state will be affected by the outcome of this case and the senate bill—and should monitor both closely.

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Susannah Nesmith is CJR’s correspondent for Florida and Georgia. She is a freelance writer based in Miami with more than 25 years working for regional and national outlets. Follow her on Twitter @susannahnesmith.