As mentioned previously in my blog, the Seattle Police Department recently started posting body cam videos on YouTube as part of their newbody camera program. Now, lawmakers and enforcement officials claim that they are having difficulty managing the footage in such a way that balances police transparency with people's privacy. This concern was stemmed from a Washington State public records request submitted by a computer programmer, Tim Clemans. Mr Clemans asked for copies of every video from Seattle PD's dashboard cameras (more than 360 terrabytes of data) back in February. That would have required a large amount of resources to redact anything that Washington State's open-records law didn't allow, such as the faces of the members of the public from police interactions. As a result, the police department decided to post what they could on Youtube while attempting to just blur out the faces of indivduals who had a right to privacy.
Police agencies across the country have begun outfitting officers with the cameras, with encouragement from the Obama administration, which has asked Congress for increased funding for the devices. The devices are supported by the public as well as criminal defense attorneys alike. However every agency in every state still grapple over what to release to the public. The only state so far to change its open public records law to account for body cameras is Oklahoma, which exempted from release videos that depict a death or a dead body, nudity, or an identifiable juvenile younger than age 16. Many departments and state legislatures also want to exempt for footage taken in private places (ie. homes)- raising more public concerns because those situations are also the ones where excessive force, misconduct, and violations of 4th amendment regularly occur. Currently, Washington does not exempt footage taken in private places, and hopefully it will stay that way.
What the State Exemption Actually Says
Under the Revised Code of Washington 42.56, all state agencies including police departments have to disclose certain records upon request based on the state's Public Records Act. Like all public records the Public Records Act comes with exemptions, listed out in WA Ann. Code 44-14-06002:
- Each record withheld must actually fall under an exemption listed out in the statute.
- An agency must describe why each withheld record or redacted portion of a record is exempt from disclosure (also called a “Withholding Index”). See RCW 42.17.310(4)/42.56.210(4).
- An agency has the discretion to provide an exempt record, except when another statute makes something legally confidential (ie. someone's private medical records).
- The Privacy Exemption: this is not a stand-alone exemption, and an agency itself cannot claim it. Rather, an agency may only invoke that exemption for individuals that have a right to privacy. See RCW 42.17.255/42.56.050.
- Attorney-Client Privilege: covers communications reflecting those transmitted in confidence between a public official or employee of a public agency acting in the performance of his or her duties and an attorney serving in the capacity of legal advisor. See RCW 5.60.060 (2)(a). An easy rule of thumb is this coverssubstantive communications about a case between the police department and a DA/prosecutor.
- Deliberative process exemption: This includes draft notes, inter-agency memos, decisions, and other confidential information. In order to rely on this exemption, an agency must show that the records contain “pre-decisional opinions or recommendations of subordinates expressed as part of a deliberative process.”See RCW 42.17.310 (1)(i)/42.56.210 (1)(i).
- Unlike federal Freedom of Information Act Requests, there is no "Overbroad" exemption in Washington State law, meaning an agency cannot deny a request for being ‘overbroad'. See WAC 44-14-04002(3). As illustrated by Tim Clemans, one can for example ask for every dash cam footage within agency control.
- Commercial use exemption: One cannot request a list of name of individuals for “commercial purposes,” although commercial purposes is not defined. “A requestor who signs a declaration promising not to use a list of individuals for a commercial purpose, but who then violates this declaration, could arguably be charged with the crime of false swearing.” See RCW 9A.72.040
- Trade secrets: Many agencies hold sensitive proprietary information of businesses they regulate, and may not disclose information that falls under the Uniform Trade Secrets Act (Chapter 19.108 in the RCW).
Appealing a Denial
A requestor also has a right to appeal a records denial within 10 days of the denial, by showing that the exemption the police department relied upon does not apply to their particular request. The appeal must be made in writing. More often than not, you want to appeal a records denial, especially because you do not have much to lose in doing so (and they cost nothing). Succeeding in gaining your records may become critical in your defense (ie. records showing the police acted improperly). If your request is denied once again, you may choose to litigate over the issue and have the judge decide whether the records you seek are exempt from disclosure. There is established Washington case law that states information that does not raise a genuine issue of material fact as to whether nondisclosure of the redacted material was essential to effective law enforcement must be disclosed. See. City of Fife v. Hicks.
"Let My Extensive Experience as a Former Prosecutor Work For You."
As a former prosecutor, criminal defense attorney Steve Karimi knows how police departments and law officials operate, and he understands the protocols that the Seattle PD must abide by every time they interact with a suspect. Mr. Karimi will utilize this knowledge and leverage the newly available body camera footage for your case to figure out the best avenue to advocate for you, along with filing public records requests and appeals on your behalf to build your defense. For example, he will file a motion to strike evidence if it has been shown that the police violated your Miranda rights whilst taking you into custody. If you have been arrested or charged with a misdemeanor or felony, do not hesitate to contact the Law Offices of Steve Karimitoday to schedule a free initial consultation.