Judicial Council Advisory Committee proposes incorporating access to body cam footage into KORA

Kansas Supreme Court AtriumOn Friday, July 31, I had the opportunity to sit in on a Kansas Judicial Council Criminal Law Advisory Committee meeting, which was convened to discuss the Substitute for Senate Bill No. 18 regarding the public’s access to law enforcement video, including footage from body cameras.  The Judicial Council conducts studies and makes recommendations for improvements in the justice system. Although the Substitute for SB 18 granted subjects of law enforcement video a right to view it, I was disappointed that it did not provide a comparable right of access to anyone else. The committee virtually unanimously determined early in the meeting that the Substitute’s requirement that video generally be “confidential” until 2020 was not acceptable.  Thus, the majority of the two-hour meeting was spent discussing how to better strike the balance between public access and concerns related to individual privacy.

To that end, rather than make video subject to an altogether new statute, the Committee’s ultimate proposal involves making footage from body cameras subject to an existing provision of the Kansas Open Records Act (KORA). In that provision, K.S.A. 45-221(a)(10), KORA says a public agency need not disclose “Criminal Investigation Records.” Bringing law enforcement video within the scope of this provision would be accomplished by slightly expanding the definition of “Criminal Investigation Records” in K.S.A. 45-217(c) to include “every audio or video recording made and retained by law enforcement using a body camera or vehicle camera.”  Therefore, under this proposal, public access to body camera footage would be treated no differently from any other criminal investigation record. Under K.S.A. 45-221(a)(10), KORA exempts criminal investigation records from disclosure, but it also provides that a requester may seek access to such records in the public interest. Thus, in the case of law enforcement video, KORA would provide bases for both non-disclosure of video footage by law enforcement and a court challenge to such non-disclosure.

I was pleased with the reasonableness of the Committee’s ultimate proposal.   It would not completely preclude public access to law enforcement video. Instead, it would create a new stand-alone statute conferring a specific right of access to video footage for subjects of the video while expressly incorporating public access to such footage into the KORA.  Fresh Takes endorses this approach, although some related issues need attention.

One problem is that KORA’s treatment of criminal investigation records generally is tilted against public access. For example, under KORA, one who seeks access to such records in the public interest must incur the expense of filing a court action. Moreover, KORA does not explicitly provide that a criminal investigation record may be disclosed with reasonable redactions if doing so would be in the public interest. In addition, the definition of criminal investigation records is susceptible to unduly broad interpretation. Still another concern is that, even if a requester receives access to a record in the form of an audio or video recording, KORA does not allow it to be copied unless such audio or video was played at a public meeting. Fresh Takes believes that issues such as these need to be addressed during deliberations on the proposal to treat law enforcement video as a criminal investigation record.

The new proposed statutory language as well as the amendment to K.S.A. 45-217(c) are set forth as follows:

“AN ACT concerning law enforcement; relating to audio and video recordings

Be it enacted by the Legislature of the State of Kansas:

Section 1. (a) Every audio and video recording made and retained by law enforcement using a body camera or vehicle camera shall be considered criminal investigation records as defined in K.S.A. 45-217(c).

(b) In addition to any disclosure authorized pursuant to K.S.A. 45-217 et seq., a person described in subsection (c) may request to listen to an audio recording or view a video recording made by a body camera or vehicle camera.  The law enforcement agency shall provide the person a viewing of the requested recording and may charge a reasonable fee for the viewing services provided by the law enforcement agency.

(c) Any of the following may made a request under subsection (b):

(1) Any person who is a subject of the recording;

(2) a parent or legal guardian of a person under 18 years of age who is a subject of the recording; and

(3) an attorney for a person described in subsection (c)(1) or (c)(2).

(d) As used in this section:

(1) “Body camera” means a device that is worn by a law enforcement officer that electronically records audio or video of such officer’s activities.

(2) “Vehicle camera” means a device that is attached to a law enforcement vehicle that electronically records audio and (NOTE: ‘and’ should probably be changed to ‘or’ before final draft) video of law enforcement officers’ activities.”

Proposed amendment to K.S.A. 45-217(c). “Criminal investigation records” means (1) records of an investigatory agency or criminal justice agency as defined by K.S.A. 22-4701, and amendments thereto, compiled in the process of preventing, detecting or investigating violations of criminal law, but does not include police blotter entries, court records, rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by K.S.A. 21-3405, prior to its repeal, or K.S.A. 2014 Supp. 21-5406, and amendments thereto; and (2) every audio or video recording made and retained by law enforcement using a body camera or vehicle camera as defined by Section 1.