As the most photographed American man in the nineteenth century, Frederick Douglass lauded the transformative nature of the camera as a catalyst for social change and racial justice; that is, with the camera, we can “see what ought to be by the reflection of what is, and endeavor to remove the contradiction.”
Two centuries later, American lawmakers continue to hold on to this vision of the camera as a tool to achieve justice. Following the killing of Michael Brown in Ferguson, Missouri in 2014, law enforcement agencies across the United States widely implemented police body-worn camera (BWC) programs in an effort to increase police accountability and transparency.
But since the inception of BWC programs across the country in 2014, police have “shot and killed almost the same number of people annually—[over] 1,000.”
Notwithstanding the perhaps well-meaning origin of BWCs, the results from these programs on police accountability remain generally unreliable.
Beyond the use of the camera itself as a tool, the footage amassed from the vast number of police–civilian interactions recorded on BWCs also raises important questions about the utility of BWCs in fostering police accountability. Determinations regarding where footage is stored, how it is stored, how long it is stored, whether it ever gets deleted, and whether the public will have access to certain footage might shield law enforcement agencies from necessary accountability, abrogate certain privacy rights, and incur costs and resources that might be better directed toward reforms or institutions other than law enforcement agencies.
Given the continued investment of resources into these programs at the state and federal level, it is worth considering whether certain aspects of BWC programs, like footage retention and release, can be improved to better serve the transparency and accountability goals that these programs are meant to achieve.
State freedom of information laws and the federal Freedom of Information Act (FOIA) determine the amount of time footage can be retained by police departments and whether that footage must be released to the public.
But, following the January 6th Capitol Insurrection (Capitol Insurrection) and the Movement for Black Lives during the summer of 2020, the conversation surrounding public access to government information seems to be evolving to encourage some degree of affirmative disclosure of government records.
This change complements the traditional request-driven model of disclosure, which currently exists at the state and federal level and requires interested members of the public to request the disclosure of certain information. Both the Capitol Insurrection and the Movement for Black Lives have increased discourse about the importance of transparency for government records and called into question the efficacy of traditional forms of disclosure under transparency laws like FOIA and its iterations at the state level.
In light of this discourse, this Note proposes that more affirmative disclosure with clear guiding principles and standards can both strengthen the accountability function and mitigate some of the risks of BWC footage retention and release policies.
Part I discusses the history of BWC programs, the considerations state and local governments weigh when crafting BWC programs, and the landscape of state freedom of information laws and FOIA. Part II explores how transparency regimes are changing from the typical request-driven model of disclosure to emphasize more affirmative disclosure. It further discusses the shortcomings of the current disclosure regime for BWC footage. Considering the new shifts in disclosure regimes and the shortcomings of the current disclosure regime for BWC footage, Part III presents an intermediary regulatory framework for BWC footage retention and release. By combining the benefits of affirmative and request-driven disclosure and adopting policy goals as guideposts in the creation of this intermediary framework, Part III argues that better outcomes in accountability and societal justice can be achieved.