Currently, a bill sits before Governor Rauner that would establish criteria for police body cameras. While the bill does not require police departments to utilize these cameras, it does establish regulations for their implementation and use. This new bill sets new and complex guidelines for determining when recordings made under this Act may be released under the Freedom of Information Act (FOIA), when they must be withheld, when permission to release must be sought and when they must be redacted. The complexity of these determinations will result in new work for FOIA Officers and their attorneys who will be asked to make sense of the new guidelines.
While on the face of it the Act seems to exempt the recordings made with the officer-worn body camera from disclosure under FOIA, in fact such disclosure is actually required in many instances. As drafted (though the drafting is unnecessarily complex and confusing) it seems that where there has been a filing of a complaint, discharge of a firearm, use of force, arrest or detention, or a resulting death or bodily harm, then the recording must be disclosed. However, FOIA Officers will be asked to determine if a subject has a reasonable expectation of privacy at the time of the recording. If that subject is also a victim or witness, then the law enforcement agency must first get written permission from the subject or their legal representative in order to release the information. Recordings also must be released to the subject of the encounter captured on the recording or to their legal representative or attorney. The Act notes that if a subject was arrested as a result of the encounter, then there is no reasonable expectation of privacy but it does not otherwise clarify what is a reasonable expectation of privacy. It also notes that a “witness” does not include a victim or one arrested as a result of the encounter.
If this is not complicated enough, the Act goes on to provide that only recordings or portions of recordings responsive to the request shall be available for inspection or reproduction. This suggests that a FOIA responder must determine the precise parameters of what part of the recording is responsive. The responder is also required to redact the recording to remove identification of any person on the recording that is neither the officer, the subject of the encounter or someone directly involved in the encounter. It then goes on to state that nothing in the Act requires the disclosure of anything that is otherwise exempt under FOIA.
Elsewhere in the legislation there is a new exemption from FOIA for the production of certain officer or pedestrian information compiled by law enforcement under the Illinois Vehicle Code related to traffic and pedestrian stop statistical study. For instance, any municipalities considering the implementation of police body cameras should make note of these new and complicated FOIA requirements.
Author: Ruth A. Schlossberg