Thursday, January 31st, 2019

PAC Opinion Requires Disclosure of Police Body Camera Footage Even If It Has Not Been Flagged

In January, the Office of the Attorney General’s Public Access Counselor (PAC) published Public Access Opinion 19-001 which clarified that police body camera footage of an incident must be disclosed to the subject of that incident, the officer involved, or their attorneys. This footage must be disclosed even if the footage has not also been “flagged” for retention beyond 90 days pursuant to the Law Enforcement Officer – Worn Body Camera Act (Body Camera Act).

This PAC opinion arose from a September 18, 2018, FOIA request submitted to the Chicago Police Department (CPD) by an attorney on behalf of an individual who had been involved in a motor vehicle collision on September 12. CPD initially denied the FOIA request, citing section 7(1)(a) of FOIA in connection with section 10-20(b) of the Body Camera Act. After the denial was referred to the PAC, CPD provided a written denial arguing that body camera footage is not subject to disclosure pursuant to FOIA unless it is flagged for one of the reasons listed in sections 10-20(b)(1) and 10-20(b)(2) of the Body Camera Act.

Although CPD cited section 7(a)(1) of FOIA, section 7.5(cc) of FOIA more precisely addresses the issue in question and expressly exempts from disclosure “[r]ecordings made under the [Body Camera Act], except to the extent authorized under that [Body Camera] Act.” Section 10-20(b) of the Body Camera Act provides a series of exceptions to the Body Camera Act’s general prohibition against the disclosure of body camera recordings under FOIA, any one of which may be satisfied for a body camera recording to be disclosed. One of these exceptions is that a recording “flagged” pursuant to the seven criteria for retention beyond 90 days listed in section 10-20(a)(7) is subject to disclosure. Section 10-20(b)(3), however, provides that a law enforcement agency “shall disclose, in accordance with [FOIA], the recording to the subject of the encounter captured on the recording or to the subject’s attorney, or the officer, or his or her legal representative.”

The PAC articulated that section 10-20(b) does not specify that only “flagged” footage is subject to disclosure to the subject of the encounter, the officer, or to their attorneys. Construing section 10-20(b)(3) as permitting these parties to obtain the footage in accordance with FOIA, regardless of whether it has been “flagged,” is more harmonious with the remainder of the statute. As such, the individual, and his attorney, had a right to disclosure of the footage from the September 12 accident despite the fact that the footage had not been flagged for retention beyond 90 days.

Kelly A. Cahill

Authors: Kelly A. Cahill, Matt Marcellis