MACo Legal & Policy Counsel Les Knapp testified before the Senate Education, Health, and Environmental Affairs Committee about the need for reforming the Maryland Public Information Act (PIA) to better address the release of police body camera footage. The September 13th briefing also included testimony from representatives from the Maryland Municipal League (MML) and the ACLU of Maryland.
Addressing police body camera issues under the PIA has been a MACo legislative initiative for the last three years. For two years, the House of Delegates passed the proposed MACo legislation with near unanimous bipartisan support, only for the bill to stall in the Senate. During the 2018 Session, the Committee debated the MACo bill, SB 788, and ultimately held the bill for further discussion. That decision culminated in the briefing. The ACLU of Maryland has opposed the legislation all three years.
Knapp explained the need for greater clarity regarding body camera footage under the PIA, citing the need for: (1) transparency and accountability; (2) privacy protections; and (3) certainty for local governments. From MACo’s testimony:
Body cameras and other forms of personal surveillance video can help provide transparency and accountability for police officer and other government employee actions as well as protect both residents and the government. It is beneficial and desirable that as many local jurisdictions as possible adopt viable body camera programs. …
Unlike dashboard or stationary mounted cameras, which are limited in both use and the areas they film, there will be far more personal surveillance video generated by the use of new technology and it will show scenes never before subject to public scrutiny – including the insides of private homes and businesses. The potential for abusive use of such video, including posting on the internet or victim shaming, is extremely high. …
Finally, the time and costs for attorney review and potential redaction of body camera video are significant and a single large request could quickly run into the thousands or tens of thousands of dollars and consume many hours of staff time. When reviewing videos, every minute of actual footage can take between 7 and 13 minutes to review by an attorney. Redaction adds additional time and costs. Long-term storage of large amounts of video also remains a challenging and costly proposal.
Additionally, without a “bright line” rule, a heavy onus is placed on record custodians to determine when and how existing exceptions to releasing information under the PIA apply. Record custodians and their governmental agencies can be held criminally or civilly liable for making a wrong decision by releasing something that should not have been released or not releasing something that should have been released.
By focusing on those videos that are truly in the public interest to ensure transparency and accountability, the time, costs, uncertainty, and liability risks for local governments can be greatly reduced.
Knapp also stressed that other states have taken more extreme positions on the privacy rights of victims and video subjects. Even the National Chapter of the ACLU has proposed model legislation that provides numerous privacy protections for crime victims and witnesses and limits who can access body camera video through public information act requests. Knapp noted that MACo developed a balanced approach to transparency and privacy by working in collaboration with public school boards, law enforcement, the press, and open government groups, including the ACLU of Maryland. Knapp addressed several of the ACLU of Maryland’s key arguments and urged the Committee to consider updating the PIA, whether it is based on the approach in SB 788, the National ACLU model legislation, or some other methodology.
MML Government Relations Manager Justin Fiore echoed support for the need for PIA reform and discussed the concerns of municipal governments and police departments. City of Gaithersburg Attorney Lynn Board explained the time, cost, and technology challenges local governments face when responding to body camera requests under the PIA. Board also stressed that without a “bright line” rule, the onus is on record custodians and local governments to make difficult decisions on what to release or not using their discretionary powers under the PIA. Board noted that local governments can be held legally liable for releasing information they were not supposed to release or not releasing information they should have released.
ACLU of Maryland Senior Staff Attorney David Rocah argued that legislation was not needed as the current PIA law covers the concerns raised in the bill. Rocah also argued that the bill would not even address the concerns raised by MACo and MML.