During a four-and-a-half hour hearing on Mayor Muriel Bowser’s plan to expand the District’s police body camera program, speakers from local groups testified that they have outstanding concerns about the public’s right to access recorded footage.
Those concerns, registered Wednesday in a D.C. Council chamber, at times seemed in conflict with one another. Advocates for open government argued that the proposed legislation would unduly compromise journalists’ and watchdogs’ ability to use body cam footage because it “carves out” exceptions to D.C.’s Freedom of Information Act (FOIA) laws.
Specifically, the legislation restricts from FOIA requests “information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy”; video captured “inside a personal residence or other place where a person would have a heightened expectation of privacy”; and video “related to an incident involving domestic violence, stalking, sexual assault or assault.” Press advocates argued that existing laws and redaction efforts sufficiently address these situations.
“The most egregious proposal included in the act would create a new exception to the D.C. FOIA that categorically exempts any [body camera] video depicting ‘assaults,’” Adam Marshall, a representative for the Reporters Committee for Freedom of the Press, testified at the hearing. “As written, this exemption would appear to allow the [Metropolitan Police Department] to withhold [body camera] video of assaults committed by law enforcement personnel against civilians. Yet this is precisely the kind of event that the [body camera] program is intended to make transparent.”
Marshall, reached by phone after the hearing, added that the mayor’s office did not, in his organization’s view, “meaningfully” incorporate the recommendations of a Council-appointed advisory group after the executive had initially proposed a blanket exemption from FOIA on body camera footage. Though the group—comprising the D.C. Open Government Coalition, the D.C. Police Union, and the American Civil Liberties Union, among others—met with the mayor’s office twice, it wasn’t allowed to comment on the final proposals before the Council received them.
“When we look at the substance of the proposed regulations, it’s clear [Bowser’s office] added things that were never discussed over the summer,” Marshall said. “For example, the language referencing ‘assault’ never came up over the summer. Had it, we would have made a big deal about it—it’s so broad, so expansive in terms of what it covers.”
Mike Czin, a Bowser spokesperson, told City Desk in response to those claims that “the administration has worked with the Council and numerous stakeholders to fund the [body camera] program and draft a set of guidelines that ensure we strike a reasonable balance between privacy and transparency.” Bowser’s office emailed the advisory group on the night of Sept. 9 with the latest regulations, writing that they reflected “very significant changes from both our initial proposal earlier this year as well as our revised proposal” in August. The email includes the proposed carve-out amendments to D.C.’s FOIA and rules governing when footage can be released outside of the FOIA process: for instance, if prosecutors or academics who have signed confidentiality agreements request it, and “on a case-by-case basis in matters of great public interest.” The latter would take place at the discretion of the mayor, who would consult with prosecutors and the police.
“We look forward to continuing to work with stakeholders as those regulations are finalized,” Czin said.
At the hearing, open-records supporters appeared to have an ally in Ward 5 Councilmember and Chair of the Judiciary Committee Kenyan McDuffie. He called the exemption for assaults “problematic.”
Press advocates also condemned a line in the bill that would require greater precision in FOIA requests, arguing that it would give public officials a pretext to dismiss them. James McLaughlin, the Washington Post’s deputy general counsel, testified that a long-term harm could result from not making records routinely available to the public. The exemption covering places that have a “heightened expectation of privacy,” he said, is unprecedented.
“This is a drastic departure from the settled approach to privacy that is used in the D.C. FOIA and nearly all public records statutes,” McLaughlin explained. “That approach is to ask if disclosure of a specific record would constitute a clearly unwarranted invasion of personal privacy.” In other words, a general exemption based on where a video was taken—for example, inside a residence—doesn’t pass scrutiny because there may be cases where police use force to subdue a person inside someone’s home.
Meanwhile, advocates for survivors of domestic violence expressed unease about how the presence of body cameras during police interventions in domestic violence incidents could traumatize victims and lead to footage ending up in the media or even an abuser’s hands. Tamaso Johnson, a policy attorney at the D.C. Coalition Against Domestic Violence, testified that his group supports amending the D.C. FOIA to explicitly exempt domestic violence, sexual assault, and stalking. Johnson added that certain policies like having officers pause their cameras, or record audio only, during domestic-violence incidents could mitigate potential harms to victims.
At-Large Councilmember David Grosso appeared to strike at the heart of the hearing when he shot off a series of questions yet to be settled: “When do we turn on and off the cameras?…[H]ow long do we keep the footage around? A day, a week, six months?”
The bill remains under Council review.
Photo by Darrow Montgomery