By Peter A. Hoffmann 6/26/15
Introduction
In what is perhaps the greatest irony of the constantly evolving relationship between the law enforcement community and the public it serves, the always boisterous anti-law enforcement constituency continues to demand that local law enforcement agencies equip officers with body worn cameras in order to “police the police.” Meanwhile, police officers across the country generally welcome the security that comes with recording their day-to-day interactions with an increasingly violent society.
In May 2014, my colleague, Rocky Lucia, published an article entitled “Body-Worn Cameras: Coming to a Uniform Near You!” A full year – and countless body worn camera policies – later, the law enforcement community has seen the proliferation of body worn cameras and the importance of proactive labor representation in negotiating policies governing the use of this important technology.
As Mr. Lucia correctly noted, the process of negotiating a viable body worn camera policy and developing a successful body worn camera program starts with understanding the real interest of those who serve as the driving force behind the implementation of this incomparable piece of equipment. While video and audio recordings generally vindicate an officer accused of misconduct – hence the broad support for body worn cameras by the law enforcement community – the fact remains that many employers have embraced the technology in response to political pressure, rather than protecting the best interests of their employees. It is only in response to increasing demands for “transparency” and misguided efforts to “police the police” that politicians are now providing their employees with body worn cameras.
Understanding this reality, association leaders must be vigilant in working with department administrators to ensure that department policies governing the use of body worn cameras are not merely political documents, but are instead designed to serve a legitimate law enforcement purpose: regulating the use of an innovative piece of equipment. Moreover, in order to eliminate the incentive for politicians to hastily announce a new body worn camera policy to facilitate their personal interests, labor associations should demand that the employer articulate the anticipated cost of the program and identify the funding source(s) for the program’s continued success.
Public Access to Recordings
Perhaps the most telling sign of an employer’s motivation with respect to adopting the use of body worn cameras is its position relative to releasing the audio/video data in response to Public Records Act requests. A properly drafted body worn camera policy will only authorize the use of a body worn camera during the performance of traditionally recognized law enforcement activities (e.g., serving a search or arrest warrant, responding to a call for service, conducting a traffic stop, etc.), thus, ostensibly exempting the recordings from disclosure pursuant to the California Public Records Act as a result of the investigative exemption set forth in Government Code section 6254(f).
As noted in Haynie v. Superior Court (2001) 26 Cal.4th 1061, the test for determining what falls within the investigation exemption is relatively broad:
“The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose of determining whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.”
As a result of this necessarily broad standard, politicians touting the department’s desire to be “transparent” face an inherent conflict in memorializing this legal principle in a department policy governing the use of body worn cameras (and inevitably include a provision restricting the distribution of the evidence collected). While it should be noted that some administrators have been clear and unequivocal in advising the public that body worn camera recordings will not be made publicly available, others have unfortunately embraced an ill advised “wait and see” approach.
As will be discussed, the problem with an employer’s indecisiveness effectively commits the department to evaluate each Public Records Act request on a case-by-case basis, thereby establishing a fiscally destructive precedent that may ultimately undermine the desirability of the technology.
The Cost of Body Worn Cameras
While many employers will publicize their commitment to body worn cameras by noting the thousands of dollars set aside to fund the cost of the cameras themselves, the reality is that the body worn cameras constitute a mere fraction of the total cost associated with the equipment. Although the Department of Justice’s recently announced $20 Million in funding to support the Body-Worn Camera Pilot Program may alleviate this initial costs for some local law enforcement agencies, the real cost of body worn cameras is only realized when one considers the costs of training, data storage, and the loss of productivity (or the cost of overtime) that accompanies downloading data at the end of an officer’s shift. For those agencies that adopt a “wait and see” approach relative to permitting access to body worn camera recordings pursuant to a Public Records Act request, another substantial cost awaits in compensating an employee (or multiple employees) – oftentimes city attorneys or county counsel – to review each and every recording that is subject to a particular Public Records Act request.
Any labor association negotiating with an employer to adopt the use of body worn cameras should be mindful of these costs and inquire about the short-term and long-term resources allocated to fund these new expenses beyond what will likely be a well-publicized introductory period. For example, while much has been made of the Oakland Police Department’s robust deployment of body worn cameras, agencies interested in mirroring the program should be mindful of some general costs, both direct and indirect:
- Cost of Body Worn Cameras: $899 per unit.
- Replacement: since 2009, over 100 body worn cameras are no longer operational due to damage/destruction/loss in the field (currently 661 body worn cameras in operation).
- Data Use: increasing each year since implementation; currently five (5) terabytes per month (in 2012, the Oakland Police Department recorded 16 terabytes in the entire year). Average officer records 1.75 hours of each shift.
- Cost of Data Storage: 500 terabyte storage capacity available for $162,000.00.
- Staffing and Training: in addition to training all personnel to familiarize themselves with activating the body worn camera in the field and operating computer software to download and view recorded events, the Oakland Police Department has one civilian employee serving as the system administrator (collateral assignment), seven (7) civilian employees assisting the data management (all collateral assignments) and each sergeant receives additional training to perform supervisory duties required by policy utilizing computer software.
- Data Download and Report Preparation: body worn camera can record up to four (4) to five (5) hours which would require approximately 25 minutes to download. Time can be included in the end of shift report writing period dependent on agency practices. Additional time required to identify/mark each recording to correspond with a specific incident report.
- Responding to Request for Recordings: in responding to an ACLU request for all recordings from Occupy Oakland, Oakland City Attorney’s Office reviewed over 472 hours of video.
Conclusion
While the use of body worn camera technology will continue to spread in the law enforcement community, it is imperative that labor associations take a leading role in formulating the policies that govern the use of this equipment, and laying the foundation for a successful body worn camera program. Although policies may vary with respect to establishing circumstances in which it is appropriate to record – there should be uniformity in ensuring that the effect of the equipment and the policy is to enhance law enforcement.
RLS and Peter Hoffmann would like to thank Acting Sergeant Dave Burke at the Oakland Police Department for his assistance with the information provided in this article.
