• Elliot Engstrom

The Basics of North Carolina's New Police Body Camera Law

Update: On July 11, Gov. McCrory signed HB 972 into law.

On June 30, the North Carolina General Assembly ratified House Bill 972, a new law dealing with police body cameras. Specifically, HB 972 deals with whether and how the videos from these cameras are made public. The law was passed as an exception to North Carolina's public records law, which generally provides that documents "made or received" by government agencies are subject to public disclosure. While complicated, the law essentially does six main things:

(1) It establishes that videos from police body cams are not public records.

North Carolina law provides that most documents made or received by government agencies are public records. Public records are subject to the public's right of inspection and examination at reasonable times and under reasonable circumstances. However, the General Assembly has the power to exempt specific documents, or entire document categories, from the public records law. HB 972 provides just such an exemption for footage from police body cameras by stating that they "are not public records as defined by G.S. 132-1."

(2) It establishes that videos from police body cams are not part of police officers' personnel records.

North Carolina law generally provides that any information gathered by a government employer with respect to an individual employee is a personnel record. Much like public records, certain categorical rights and requirements surround personnel records. Various statutes govern the personnel records of municipal, county, and state employees.

Personnel record laws provide government employees with certain privacy rights in their personnel file. HB 972 eliminates these privacy rights by specifically providing that police body cam recordings "are not personnel records as defined in Part 7 of Chapter 126 of the General Statutes, G.S. 160A-168, or G.S. 153A-98." Police officers, sheriffs, SBI officers, and members of the Capitol Police therefore have no general right to privacy related to their body camera footage.

(3) It establishes whether and to whom body cam footage may be released by creating various forms of "disclosure" and "release."

Unlike general public records, which must be disclosed to "any person," police body camera footage may only be released to certain persons in certain circumstances. HB 972 provides for various access to body camera footage by different people in different situations:

Subsection (c) "Disclosure"

Police body camera footage may be "disclosed" to "[a] person whose image or voice is in the recording," or that person's representative. However, a person who receives disclosure pursuant to this section "shall not record or copy the recording." So, "disclosure" is for people who want to see footage of themselves captured on police body cam. A request for "disclosure" is made to a law enforcement agency, and a denial of that request may be appealed to superior court.

Subsection (e1) "Expedited Release"

Any person authorized to receive "disclosure" of footage may petition "the superior court in any county where any portion of the recording was made" for an order releasing the footage to them. HB 972 charges the Administrative Office of the Courts with promulgating a form on which such a petition may be filed, and there is no filing fee. The "expedited release" process is basically the same as the "disclosure" process, but simply cuts out the initial request to the law enforcement agency and takes the issue straight to superior Court. So, someone who thinks that a law enforcement agency is likely to deny their request for "disclosure" may opt for the expedited release process.

Subsection (f) "General Release"

Any general release of body camera footage may only be accomplished "pursuant to a court order." A person seeking general release of footage must file an action in superior court "in any county where any portion of the recording was made for an order releasing the recording." The court may, if it chooses, conduct a private in camera review in order to determine whether to release the footage.

A court deciding whether to release footage must consider eight factors, including whether release is necessary to advance a compelling public interest, whether the recording contains confidential or sensitive information, and whether there is "good cause shown" to release all portions of a recording.

Further, several people must be given notice and an opportunity to be heard at a "general release" hearing, including the head of the law enforcement agency, any law enforcement personnel in the footage, and the District Attorney.

Whereas a person who receives "disclosure" of footage may not make any sort of copies, this requirement does not exist for "general release." So, we can expect to see journalistic organizations bringing "general release" actions in the future.

Subsection (g) "Law Enforcement Purposes Release"

HB 972 requires law enforcement agencies to release body camera footage to district attorneys in certain circumstances. These include when a district attorney needs to review the footage when deciding whether to bring criminal charges or when a district attorney needs the footage in order to comply with a discovery request by a criminal defendant.

Further, law enforcement agencies may release body camera footage for training, administrative, or general law enforcement purposes in certain circumstances.

(4) It requires law enforcement agencies to retain, and then later destroy, body camera footage.

The new law requires law enforcement agencies to retain body camera footage "for at least the period of time required by the applicable records retention and disposition scheduled developed by the Department of Natural and Cultural Resources, Division of Archives and Records." So, for the purposes of retention and destruction, body camera footage is treated the same as public records under N.C.G.S. 132.

The Department of Natural and Cultural Resources (DNCR)'s retention schedules are promulgated as part of the North Carolina Administrative Code, and are available online. There are different schedules for local, state, and university governments. DNCR further prescribes exactly how footage must be destroyed following the expiration of the retention period -- in such a manner that the footage cannot be reconstructed by any means.

DNCR's current retention schedules, when applied to body camera footage, require that state agencies retain such footage for 30 days if not involved in an investigation. A county sheriff's office must retain footage until its "reference value" ends. In any case, however, an agency must retain the footage if it reasonably anticipates that litigation is likely.

(5) It provides the State Bureau of Investigation and the State Crime Laboratory access to view and analyze body camera footage.

The law requires state and local law enforcement agencies to provide, "at no cost," a method for the State Bureau of Investigation and the State Crime Laboratory to view and analyze body camera footage.

The only way that an agency can opt out of this requirement is to completely decline to use the services of the State Bureau of Investigation or the State Crime Laboratory.

(6) It prohibits any award of attorneys' fees.

Several portions of HB 972 provide for actions to be filed in superior court. Sometimes, North Carolina law provides that a prevailing party in a given action is entitled to attorneys' fees. For example, a plaintiff who "substantially prevails" in a public records lawsuit is entitled to attorneys' fees.

HB 972 provides that a court "may not award attorneys' fees to any party in any action brought pursuant to this section." So, a person who wants to pursue police body camera footage in court will either have to litigate pro se or be willing to hire a lawyer at their own expense.

Have further questions about how North Carolina's new laws regarding police body cameras might apply to your situation? Contact us to learn more.

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