An example of the type of dashcam footage that could be deleted and withheld from the public under a bill proposed in the Tennessee Legislature.
A stealth caption bill that seeks to lock down citizen access to police body cam and dashcam footage has emerged late in session and will be heard in two key committees on Wednesday. The bill allows a law enforcement agency to delete most body cam and dashcam footage after 30 days and prevents local restrictions on police surveillance, such as facial recognition systems and drones.
The bill, as revised, would be a dramatic step away from transparency, allowing police complete discretion over how it handles body camera footage and what is released and not released, even to the citizens directly affected in a police confrontation.
The proposed legislation , HB 2586 and SB 1999, was filed as a caption bill that dealt with the length of time a governmental entity could store license plate data that was collected or maintained by law enforcement from a license plate recognition system. But that one-page bill has suddenly turned into a 10-page amendment that is floating around law enforcement circles at Capitol Hill. It was only made available late last week to citizen advocates concerned about transparency and police surveillance.
The amendment — which had not been posted on the General Assembly website as per House committee rules as of Tuesday morning — would make all body cam and dashcam footage confidential except for footage in which a law enforcement personnel discharges a service weapon or inflicts “serious” bodily injury. Even that footage, which could be considered evidence in a criminal case, would be confidential “during the pendency of the investigation, case, operation, prosecution, or other action.”
All other footage could be deleted within 30 days, including footage that may indicate police misconduct or violation of policies such as excessive use of force on a citizen.
The bill is coming from the office of Rep. Michael Curcio, R-Dickson, who is chairman of the House Criminal Justice Committee. The bill is on the calendar for 9 a.m. Wednesday of the House Criminal Justice subcommittee, on which Curcio sits. If it passes there, it will head to Curcio’s committee the following week. In the Senate, Mike Bell, R-Riceville, who is chairman of the Senate Judiciary Committee is the sponsor. The bill is on the Senate Judiciary Committee calendar at 2:30 Wednesday.
Bill also prohibits restrictions on police surveillance to protect privacy
In addition to making secret almost all body cam footage, the bill’s amendment also sets out guidelines for surveillance technology used by law enforcement in Tennessee. The bill prohibits a local government from restricting use of police surveillance on its citizens.
The bill’s amendment proposes that only the state legislature can restrict police surveillance, not city councils or county legislative bodies. So, for example, if a city police chief’s practices on surveillance go awry, a city council to whom the police chief reports would be unable to take action to protect citizen privacy.
The amendment would assign the criminal justice steering committee that reports to the Administrative Office of the Courts to develop standards for police surveillance technology including police body cameras, drones, electronic monitoring devices, facial recognition systems, in-car cameras, object recognition systems and unmanned aircraft use by police. This committee meets by Zoom and WebEx periodically, but no information is online on how citizens can access its meetings, nor are any agendas, minutes or video of its meetings online to determine the committee’s activity to date, raising questions about the transparency of that committee.
Police would have to develop policies on body camera use, according to the amendment. But a portion of the amendment that required police officers to keep body cams and dashcams on during a confrontation with a citizen or to audibly state why they were turning them off appears to have been struck in favor of another amendment that also has not been filed yet. Although the subcommittee meets tomorrow, it is unclear what the final version of an amendment might be.
Critics: Only ‘copaganda’ body cam footage will be released
Reducing access to body cam footage and allowing most footage to be deleted after 30 days has raised serious questions, not only among open government advocates but district attorneys.
One district attorney’s office, for example, sent out an alert to news media about the amendment late last week, warning them that all body cam footage and dashcam footage would be exempted from the public records law. “Any body worn or dash cam video that does not hold evidentiary value will never be available for public inspection. If you receive a tip about misconduct that does not rise to a criminal level, you will never be able to review the video.
“Law enforcement will only be required to retain video depicting officer-involved shootings and potential excessive force incidents for 30 days unless a District Attorney General subpoenas the video. It is common for DAs to learn of excessive force incidents long after a 30 day period.”
The amendment allows law enforcement to release video if they so choose. But without citizen-ensured access through the public records law, some advocates fear police will only release footage that “clears” an officer and withhold or even delete footage that reflects poorly on the officer or the police department — a practice known as “copaganda.”
In addition, because police departments would be allowed to delete footage after 30 days unless it meets a definition of “evidentiary” data in a criminal proceeding, most footage related to potential police misconduct could likely be destroyed because it is not relevant to a criminal proceeding. That could cause a problem down the road when a district attorney receives a complaint from a citizen, or when an internal affairs unit is trying to determine what happened during a citizen encounter.
In addition, even if the video were retained, it would not be available to the public or the citizen involved in the encounter unless it reached a criminal stage.
For example, law enforcement initiates internal affairs investigations when a citizen complains of excessive use of force, such as overuse of Tasers or other tactics. Almost always, this is a policy violation and has no criminal penalties. At the end of the investigation, the officer may be cleared or subject to internal disciplinary action, but under the structure of the proposed legislation, any body cam footage or dashcam footage that cleared or didn’t clear the officer would be unavailable to the public — even to the citizen affected.
In this way, the bill ignores the public’s legitimate interest in police actions that trigger internal investigations, such as into excessive use of force.
Criminal courts would have jurisdiction over records, even when there is no criminal case
The amendment signed by Curcio also would give criminal courts jurisdiction over all body cam and dashcam video, even when there is no criminal case or contemplated criminal case, such as during an administrative internal investigation into a policy violation.
Currently, under the public records law, a citizen can appeal a denial of access to public records to chancery and circuit courts. Those courts handle civil matters and have long-developed expertise in public records law.
While criminal courts control access to records involved in criminal proceedings — overseeing the discovery process that allows defendants access to certain police records, for example — they have never been involved in controlling access to non-criminal records. In essence, the bill instructs criminal courts to apply criminal court discovery rules to non-criminal records even when there is no case and no defendant.
It is unclear the purpose of the bill. Earlier this year, another body cam exemption bill was passed. That bill was initiated by law enforcement associations and was targeted at certain footage within videos to protect privacy of citizens. It has cleared the Senate and is waiting on a House floor vote.
Further changes may be made to the bill as the sponsors race to get the bill considered, but the complexity of the bill has citizen advocates worried about such major changes without input from stakeholders.
Repeated calls by Tennessee Coalition for Open Government to talk with Rep. Curcio about the bill have gone unanswered.
