Police body cameras could conflict with Florida’s public records law

Tampa Tribune

By: James L. Rosica

— In another example of the unintended consequences of new technology, the use of body cameras on law enforcement officers is on a collision course with the state’s public records law.

At issue: Who should be able to watch what the miniature cameras record?

This legislative session, one lawmaker filed a bill creating what he thought were common-sense exceptions to Florida’s broad disclosure statute for public records, which would encompass body-cam recordings.

But Sen. Chris Smith, a Fort Lauderdale Democrat, had to temporarily pull the measure (SB 248) from consideration after objections from police and civil-rights organizations that the measure went too far – or not far enough.

A House companion measure was withdrawn last month.

The cameras’ benefit in memorializing police interactions has increased after the deaths of Michael Brown in Ferguson, Missouri, and Eric Garner in Staten Island, New York. Both were unarmed black men who died last year during altercations with law enforcement officers.

Moreover, Florida has seen its own high-profile disputes over the merits of transparency.

The widow of race-car driver Dale Earnhardt won a court case to prevent release of his autopsy photos after his death in a last-lap wreck at the 2001 Daytona 500. News organizations sought their release to do their own investigations into the crash.

The Legislature later exempted such photos from disclosure without a court order.

This latest clash between privacy and openness, which already has resulted in a lawsuit, promises to affect Tampa: Its police department now is using 60 cameras in a one-year pilot study.

Elsewhere in Tampa Bay, the Temple Terrace Police Department and the Pasco County Sheriff’s Office also are using them.

Tampa Police Chief Jane Castor agreed to require her officers to inform crime victims when cameras are rolling and allow them to ask that a camera be turned off.

“We get called into some of the worst moments in people’s lives,” Castor told The Tampa Tribune earlier this month. “And I agree that private moments should be private.”

Smith, the state lawmaker, says much the same. His bill creates several exceptions to public disclosure, including body-cam footage taken inside a home; at a hospital, mental health or social services facility or at the scene of a “medical emergency.”

Other exemptions apply to video showing someone under 18 inside a school or on school grounds, or “a child younger than 14 … at any location.”

A catch-all provision exempts any police body-cam video where an individual recorded had “a reasonable expectation of privacy.”

Smith uses the hypothetical example of a certain celebrity gossip website and the actress wife of the Miami Heat basketball team’s star guard.

If a police body-cam video was taken “in a park, parking lot or other public place, fine,” he said. “But if police are called to Dwayne Wade’s house, TMZ shouldn’t be able to get a tape of Gabrielle Union in (hair) rollers.”

Smith added: “The devil is in the details, and the problem we have is trying to get these details so that everything is fine. Every time we put something in, something else pops up.”

He mentioned a section of his bill mandating law enforcement agencies keep body camera recordings for “not longer than 90 days.” Law enforcement representatives told him that some internal investigations, for instance, can last up to four years, he said.

Nanette Schimpf, spokeswoman for the Florida Sheriffs Association, said her group was concerned the bill would apply to all audio and video recordings, including audio recordings at jails and dashboard camera video.

“We are proposing a minimum record retention threshold be set, just like all other records in Florida,” she said.

Others took issue with his exemption for children under 14, Smith said.

They mentioned 12-year-old Tamir Rice, the Cleveland boy shot dead by police as he held a toy gun. The incident happened to be caught by a park surveillance camera.

“We’re concerned because we thought the exemptions were too broad,” said Michelle Richardson, public policy director for the American Civil Liberties Union of Florida. “They could be used to suppress evidence of police misconduct.”

Police and other law enforcers are less subject to brutality complaints when wearing body cams because they “realize they can be held accountable for what they do,” she said.

Her organization’s vice president, Michael Barfield, sued the city of Sarasota over access to body-cam footage.

He wanted a copy of 84 hours of video from when police there tested their body cameras last year, according to reports. Barfield balked when told it would cost $18,000.

As far as Smith’s bill, Richardson said she hadn’t found the perfect solution, “but we’re going to keep working to find the right balance.” Barbara Petersen, president of Florida’s First Amendment Foundation, a nonprofit watchdog group, sent Smith a letter also warning that his bill was “overbroad.”

She questioned, for instance, the exemption for video taken in homes.

Petersen explained it could keep hidden video of an arrest in someone’s living room even if that person wanted to use it to show excessive force.

Conversely, police could have to get permission of someone in a body-cam video who filed a brutality complaint – even if the agency wanted to use the video to defend itself against “false or overwrought accusations,” the letter said.

Smith “has had no contact with us, which is not that unusual” among lawmakers, Petersen said in an interview. “Unless they want us to say we like something. Then they’ll contact us.”

The senator said that “no one is trying to do anything nefarious.” Rather, he’s just “trying to find the sweet spots in all the language.”

On Thursday, the bill was rescheduled to be heard by the Senate’s Governmental Oversight and Accountability committee this Tuesday. A House measure similar to Smith’s is expected to be filed soon.

Smith is certain of a resolution that balances the right to access with a respect for privacy: “I’ve sat down with a lot of people; I’m making notes … There is a path.”