FBI Slayings Show Risk Surveillance Cameras Pose to Law Enforcement

FBI agents console each other as they arrive at the Broward County Medical Examiner’s Office in Dania, Fla., after two FBI agents were killed and three wounded while trying to serve a search warrant in Broward County on Tuesday Feb. 2, 2021. (Susan Stocker/South Florida Sun-Sentinel via AP)​


The child pornography suspect who gunned down two South Florida FBI agents this week somehow knew exactly when they were approaching his apartment.

Authorities are investigating whether he may have used his doorbell’s security camera to time his ambush, firing a high-powered rifle through the door as their team neared to search his home and computer.

That’s a danger police nationwide are facing: As outdoor surveillance cameras now protect about half of U.S. homes from criminals, the criminals are using them to get a jump on officers about to raid theirs. Some doorbell cameras even have motion sensors that alert owners when anyone comes within 100 feet (30 meters).

The cameras, combined with the military-style weaponry many criminals possess, leave law enforcement offers particularly vulnerable. In such situations, the house’s doors and walls offer no protection, noted Ed Davis, Boston’s police commissioner from 2006 to 2013.

“You take a military assault rifle and you add to that a surveillance system that allows (the suspect) to identify where officers are as they approach the house — you are a sitting duck,” Davis said.

The FBI says David Huber, a 55-year-old computer technician with no criminal record, gunned down agents Laura Schwartzenberger and Daniel Alfin and wounded three others. He then killed himself. The agency hasn’t said whether Huber’s camera had a motion detector, but that could explain why he was awaiting the agents Tuesday before dawn — an hour officers often pick for raids because the suspect is likely asleep.

“A child exploitation suspect, he is going to be on his toes all day long — he doesn’t want to get caught because he is going away for a long time,” said New York City Detective Robert Garland.

In the 1980s and ’90s, a home with outdoor surveillance cameras was often a sign the resident was a drug dealer or otherwise a criminal, according to Davis and retired SWAT officer David Thomas, now a criminal justice professor at Florida Gulf Coast University. A good system could cost thousands.

“They were the only ones who could afford it,” said Thomas, who worked for the Grand Rapids, Michigan, and Gainesville, Florida, police departments.

Davis said such cameras were so often an indication of criminality, some judges considered their presence when approving officers’ warrant requests.

The cameras were also large and hard to hide — officers could spot them during pre-raid surveillance and approached accordingly.

But today, a technically savvy person can install security cameras for a few hundred dollars and a good doorbell camera can be purchased for less than $200. Many cameras are small and easy to hide.

Thomas said police tactics often trail new technology and will need to be adjusted to deal with doorbell cameras and other home surveillance systems. He said departments may start having more warrants served by heavily armed tactical units and use diversions, such as breaking a side window before going to the door, to distract the suspect.

Departments might also ask judges to issue more “no-knock” warrants, which allow officers to break down the door immediately and without warning. That would fly in the face of growing calls in some cities to do away with such warrants after they have resulted in the deaths of innocent people.

It was while exercising a no-knock warrant that Louisville, Kentucky, police killed Breonna Taylor in her apartment 11 months ago, sparking nationwide protests.

“The issue is very complex, but the reality is there has to be something” for officers to protect themselves, Thomas said.

Davis said there are some countermeasures officers can take against surveillance cameras but they carry the risk of tipping off suspects, particularly when they believe a raid is imminent. Some police departments have devices that can jam the Bluetooth or other radio-wave systems some cameras use to send images to their monitor. And they can cut the home’s power, although many camera systems have battery backups.

Serving warrants has always been one of law enforcement’s most dangerous jobs, even before sophisticated home security cameras were commonplace. On the Grand Rapids SWAT team, Thomas was the door kicker — the officer who is directly in the line of fire if the suspect is waiting in ambush. He said the door is a particularly dangerous spot.

“You never know what is waiting on the other side,” he said.

Davis said the FBI will do a comprehensive report on the shooting. When other agencies receive it, they will pore over it so they can protect their own officers from gunmen with security cameras.

“It has to be reviewed — there are lessons to be learned from this terrible tragedy,” Davis said.

By Terry Spencer | Associated Press | Police1.com

How Smart Buildings Can Assist Public Safety Response

The outside incident commander directly managed and received the information feeds from all sensors as opposed to the direct response teams. (Center for Innovative Technology)

It is Fall 2021, and everyone is relieved life is returning to a post-COVID pandemic norm. A local university is welcoming its incoming class with a free concert in the basketball arena. Several thousand students take a break at intermission to go up to the concourse, grab some popcorn and socialize. Suddenly shots ring out, and two people fall to the ground. Everyone in the vicinity scatters; some head outside, others hide, still more go back down to the arena floor where the band is readying for its second set. A wave of panic sweeps the arena as more shots are heard.

The two university police officers on duty in the command center at the arena realize something is wrong. One calls for backup while the other runs in the direction of the gunshots. Within minutes several more campus patrol officers arrive on scene and are sent to join the first officer moving around the concourse. Within the next five minutes, backup from the local city police force arrives. The second team of officers pivots in the other direction around the concourse to intercept the moving target. Fortunately, the campus police locate and neutralize the shooter before the two groups converge.

But the incident is far from over. Answers to many other questions are needed:

  • Is there more than one shooter?
  • How many people are injured and need attention?
  • Might there be explosives or incendiary devices hidden in the building?
  • Who is in charge?

In the next few minutes, a local special response team arrives and begins to sweep the building. The team sets up a command center in the parking lot, and EMS support swoops in. University police set up a warm zone on the south side of the arena and support the medics working to locate and treat victims as areas clear. Some city officers and campus police engage in crowd management, seeking to calm the situation, find eyewitnesses and look for a possible second shooter. A public affairs officer coordinates with the university and begins to interact with the gathering press corps. It takes 37 minutes to find the last of the dozen victims, hiding behind a trash receptacle, but it is too late by then. The on-scene commander gives way 90 minutes later to a state response team that engages to help clear the building.


This nightmare scenario was the basis for a major training exercise at the EagleBank Arena at George Mason University (GMU) in November 2019, which was led by GMU’s Special Response Team and included approximately 80 law enforcement and fire and rescue personnel from a variety of state, local and university organizations. Many had never had the opportunity to train in such a large facility or interact with such a large number of students, each playing various roles including the shooter, members of the crowd and victims.

But this exercise was even more unique and consequential than just the scale and scope. The Department of Homeland Security Science & Technology (DHS S&T) Directorate supported the exercise. GMU faculty and administrators, as well as industry teams led by the Center for Innovative Technology (CIT) and Smart City Works guided the drill to explore and research smart building technologies’ effectiveness to help save lives and improve response.

Many leading-edge sensors, including video and audio, shot detectors, particulate sensors, WiFi detectors, occupancy detectors and others, are wired into the arena. The sensors are packaged in an EXIT sign’s footprint and brought into a display on a “single pane of glass,” including both typical building management systems and the public safety sensors.

The technology allows for 2D and 3D visualizations in the command center and tablets in the incident command center. These sensors need to provide value to the building owner on a day-to-day basis, including cost efficiency, among other things. They have a proven ability to help reduce energy consumption, manage the facility, and reduce insurance costs. If an incident occurs, these same sensors are the ones available to help manage the incident.


In the debriefs, command-level and tactical responders and technologists commented that this was the first time they had ever joined together to think about how to improve the technology. The lessons were numerous.

The highest value sensors were the real-time occupancy detectors that were viewable on an interior facility map. Understanding where response team members are within the structure in real-time is critical for incident management, particularly where responders from different organizations interact. These sensors effectively help guide the response to where people are and locate all of the 12 scenario victims significantly faster than the search teams. These same sensors can also help building owners reduce energy consumption, helping to cover the costs of installation.

The outside incident commander directly managed and received the information feeds from all sensors as opposed to the direct response teams. This tactic reduced the overall response time and allowed response teams to focus on the direct mission and utilize their standard training and procedures.

Video and audio were most useful on map-based displays rather than the typical panel of 12- or 16-video feeds, which provided only limited situational awareness for people unfamiliar with the building.

The video was most useful forensically, with some analytics able to verify that there was only a single shooter in this scenario. Specialized shot spotters were not much more helpful than simple audio. The response teams were too focused on heading for the stimuli presented in action to manage this kind of external information. The response team leader suggested red/yellow/green visual cues on EXIT signs might indicate where recent activity has triggered sensors within the last minute.

The evolution of these technologies in this and other in-building testbeds continues as part of the ongoing DHS S&T SCITI Labs program with CIT. For scenarios such as a chemical release or secondary incendiary devices, particulate detectors come into play. For example, during installation in the arena, these secondary sensors could detect fresh paint residue in the building. They even could identify popcorn machine activity. Newer versions will have the sensitivity to detect a range of chemical signatures including fire ignition and biological molecules such as COVID-19.

The SAFETY Act may help incentivize building owners to install these systems by reducing their liability and changing building codes to allow IoT-enabled EXIT signs. Normal equipment replacement cycles will help increase adoption over time so these sensor capabilities become more common.

Drone-based versions of the occupancy sensors could fit easily inside an arena to help significantly speed search and rescue. Portable versions of the full sensor and electronics suite are also in the works for protective service types of missions or special event gatherings.

Technology is changing rapidly. The public safety technologies tested in this exercise are proven to reduce risk, increase public safety response effectiveness, and save lives. These capabilities can be most effective when the responder community is actively involved in the design, trial and use of new technology from its inception. We encourage you to look for ways to engage!

For more information contact CIT at SCITI.Info@cit.org and visit www.cit.org/vasmart.

​By David Ihrie | Police1.com​
About the author
David Ihrie is the Chief Technology Officer (CTO) for the Center for Innovative Technology (CIT) in Virginia, a non-profit that creates technology-based economic development strategies to accelerate innovation, imagination and the next generation of technology and technology companies. He has over 40 years of industry experience as a direct innovator in the fields of satellite and terrestrial communication, computing and information science. He has been a principal in seven startup companies in industries including nuclear power, digital broadcast and analytic software for the intelligence community.

He has used the CTO position as a platform to help build four breakthrough enterprise-scale innovation organizations. The National Technology Alliance brought non-traditional technology companies to help solve hard problems for the intelligence community. MACH37 is the first vertically focused business accelerator for cybersecurity. He leads a program with DHS Science & Technology Directorate to bring leading-edge innovation to the first responder community and has partnered with Smart City Works to create the world’s first infrastructure-focused business actuator. Currently, he leads Smart Communities initiatives for Virginia and is helping bring this new generation of capability to all Virginians.

DOJ Announces Use of Body-Worn Cameras on Federal Task Forces

​On October 29, the Justice Department announced that it will permit state, local, territorial, and tribal task force officers to use body-worn cameras on federal task forces around the nation.  The department’s policy will permit federally deputized officers to activate a body-worn camera while serving arrest warrants, or during other planned arrest operations, and during the execution of search warrants.  The policy is the result of a pilot program launched by the department last October.

“After spending a substantial amount of time examining this issue, assessing the results of the pilot program, and taking into account the interests and priorities of all the law enforcement agencies involved, I am pleased to announce that the department will permit the use of body-worn cameras on our federal task forces in specific circumstances,” said Attorney General William P. Barr.  “The Department of Justice has no higher priority than ensuring the safety and security of the American people and this policy will continue to help us fulfill that mission.”

The Department of Justice, through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); the Drug Enforcement Administration (DEA); the FBI; and the U.S. Marshals Service (USMS), partners with state, local, territorial, and tribal law enforcement on hundreds of federal task forces throughout the nation. Together, these task forces work to combat violent crime, stem the flow of illegal narcotics, and arrest dangerous fugitives.

On Oct. 28, 2019, after consulting with a number of state and local law enforcement associations, the Attorney General announced a pilot program to consider the use of body-worn cameras on federal task forces.  In January 2020, federal task force officers in several pilot cities began using body-worn cameras on task force operations and concluded the pilot program on Sept. 1, 2020.          

The department would like to thank the Houston Police Department, Detroit Police Department, Wichita Police Department, Salt Lake City Police Department and Park City Police Department for their participation in the pilot program, as well as all of the state and local law enforcement leaders that have provided input and guidance.

State and local agencies that would like to participate in DOJ’s task force body-worn camera program may contact the Special-Agent-in-Charge of the federal agency sponsoring the task force, or, in the case of USMS-led task forces, the federal district’s U.S. Marshal.  Due to the large number of state and local agencies nationwide that may like to participate, federal agencies may establish a graduated process to onboard partner agencies to the body-worn camera program.  This will ensure an orderly and coordinated process to deal with the technical, training, and operational considerations involved in establishing a large-scale body-worn camera program.

Read the policy:  Use of Body-Worn Cameras by Federally Deputized Task Force Member

Photo from Homeland Security Today

Privacy and Accuracy Issues Raised by Facial Recognition

​Photo © izusek/E+/Getty Images

The tremendous benefits of facial recognition technology for law enforcement identification applications have brought with them unparalleled challenges. Some among the public continue to believe that every individual is being tracked and watched wherever they go, or that facial recognition has an ethnic bias. These myths are incorrect—yet their persistence can create obstacles for hardworking officers and agencies.

To further complicate matters, at the same time facial recognition experts are working hard to educate the public on how beneficial this technology is, the amount of incident-related video is rapidly growing, and local and federal law enforcement investigations are relying more and more on video as one of their key sources of evidence to build a case. Body-worn cameras, in-car video and hundreds of millions of smartphones are generating massive quantities of video that can be used as evidence for arrests and in trials. This means that a rapidly growing number of individuals who are not involved in the incidents, and not part of ongoing investigations or trials, are being recorded on video as well.

The failure rate for searches has dropped from 5% in the year 2010 to 0.2% in 2018.

The Freedom of Information Act (FOIA) was enacted to make U.S. government agencies’ functions more transparent. Through the FOIA, individuals, law firms, businesses and news organizations can request any information including these video recordings, from law enforcement agencies. Already resource-stretched agencies are being forced to take time away from critical responsibilities to respond to each of these requests. A significant amount of the video captured includes images of individuals not related to the investigations whose privacy must be protected. Agencies are further required to dedicate increasing amounts of time and resources to manually redact these individuals’ faces from video. Not only does this consume a tremendous amount of personnel bandwidth, it also is susceptible to errors.

Fortunately, while technology is creating more responsibilities for officers in this way, it is also providing the tools to address many of the public’s concerns about privacy and the accuracy of tracking utilities like facial recognition.

How automated redaction helps

Through a combination of artificial intelligence and machine learning, new technology is delivering solutions to ease this burden, reducing the time needed for the manual processes of uploading, storing, searching, editing, and sharing video evidence. Most important, the technology leverages the capabilities of deep learning analytics to automatically analyze video and catalog faces, thus redaction capabilities. This dramatically reduces the time, effort, and expense required for redaction services—in some cases by up to 90 percent.

Automated redaction addresses privacy concerns by ensuring that outside organizations requesting video do not see the faces of every person who happened to be captured within the scene. The video data is maintained in the evidence itself, but it does not get shared beyond the initial capture from body-worn cameras, in-car video, surveillance cameras, or phone cameras. When redacted video is played back inside a courtroom, juries and audiences are shown only the edited version with bystanders’ faces blurred beyond recognition, while the original video remains intact as evidence.

Using technology like this, agencies can streamline their video redaction responsibilities to better respond to FOIA requests quickly and efficiently.

Advanced software improves accuracy

From the moment the public became aware of the existence of facial recognition as an application, there were stories about shortfalls in accuracy. Many claimed that individuals from certain ethnic backgrounds could not be reliably identified. This spurred concerns that there could be accusations, arrests or even convictions that were incorrect based on inaccurate identification of a suspect based on facial recognition.

In reality, the technology has evolved greatly in the time since it was first introduced. Further, the level of accuracy has improved enormously in the last 10 years, according to an evaluation performed by the National Institute of Standards and Technology (NIST). According to a November 2018 news story, the NIST reports that the failure rate for searches (meaning that the software failed to find the matching face residing within a database) has dropped from five percent in the year 2010 to 0.2 percent in 2018—a reduction of 96 percent.

When facial recognition software scans a face to look for a match, it is processing a number of different geometric vectors. While all software is different, most read such factors as the distance between eyes and the distance from chin to forehead. Depending on the sophistication of the software, it may be reading 50, 75 or more different factors. Typically, each analysis is performed individually, and the only data being stored on databases is the physical information contained in the photos themselves, along with the identities of the individuals in the photos.

The network of facial image databases available to and via federal and local law enforcement agencies has grown accordingly, so this level of accuracy is even more important and meaningful. The databases include mug shots, the State Department’s entire directory of visa and passport pictures, and photos from the Departments of Motor Vehicles.

As of October 2021, Americans in 47 states will be required to show either a passport or a new federally compliant Real ID driver’s license to board any domestic flight. For non-government users of the technology, databases could include opt-in customers who have provided their photos for a variety of reasons including security checkpoints, ID access bracelets, VIP club memberships, etc. All of these databases may also be used to determine the identify of an individual caught on surveillance video and suspected of a civil or criminal infraction.

Because there are so many image databases available, it is imperative for law enforcement to have absolute certainty when surveillance video of a crime is being matched up in an attempt to identify a perpetrator caught on camera. Today’s best facial recognition offerings meet that requirement.

Facial recognition has become a hot button for privacy advocates in recent years. Yet there is no doubting that the technology has exceptional application potential—so much that it will without question continue to proliferate. As the ability to redact faces becomes more efficient and the recognition technology itself becomes more accurate, some of the general public’s concerns will continue to fade away.

By Rob Thompkins, i-PRO national sales manager | Police.com

Show-Me Surveillance: Law Enforcement Navigation of Missouri’s Sunshine Law

On Sept. 1, 2018, Buffalo, New York, police officers recorded by body camera the last shift of duty in a pilot program set up to test the new but burgeoning technology. The program had begun in mid-March, when 20 Buffalo officers wore cameras during the city’s St. Patrick’s Day parade – and it expanded to hundreds more officers in the months afterward. On Sept. 12, 2018, just 11 days after the pilot program ended, police responding to a call of a man with a gun shot 32-year-old Rafael Rivera six times during a foot chase, leading to Rivera’s death.3 A lawyer for Rivera’s family said the only footage from the scene came from a nearby commercial building.4

Few departments had body cameras before a series of controversial police-public interactions boosted public support for the technology in 2014 and 2015. Public outcry over the Rivera shooting and the lack of footage following Buffalo’s pilot program expiration illustrate both how quickly communities have adapted to body cameras and the public’s continued interest in transparency. From police interactions, including fatal shootings of Michael Brown, Freddie Gray, and George Floyd, to stories exonerating law enforcement officers from accusations of beating suspects,5 video footage of law enforcement officer-involved actions has led to a national discussion about the nature of these interactions and the use of force by police officers.6

Experts disagree about the effect of body cameras on police behavior. Some studies have shown reductions in use-of-force incidents after body cameras are deployed,7 while others have shown no difference.8 But the biggest challenge, in many ways, to the use of this technology has arisen in terms of the methods of storage of the data acquired via the cameras and the creation of open records laws relating to access to that data by members of the public. An enormous increase in government information storage loomed when body cameras were embraced by then-president Barack Obama, who approved federal funding of body cameras for law enforcement officers.9 A television news syndicate surveyed the percentage of law enforcement agencies using policy body cameras in the viewership areas they broadcast to and found 38% of those 400 agencies used body cameras.10

Missouri’s local law enforcement departments are not permitted to hand off state Sunshine Law responsibilities to third parties with one exception – when “the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”11 This issue will prove challenging with the widespread use of police officer body cameras, increased digital storage needs created by this technology, and related privacy concerns and Sunshine requests generated by this new technology.

Part I of this article explains the current climate surrounding police body cameras and the call by many commentators, including law enforcement officials, to outfit all law enforcement officers who interact with the public with those cameras. Part I concludes by examining the digital storage demands created by body cameras and how this increase has prompted offers for free cloud-based records retention.

Part II of this article examines the current context of police records laws, as well as explores the limits of what records can be farmed out to third-party vendors in Missouri. This portion of the article also includes information on bi-partisan attempts by federal lawmakers to help local law enforcement agencies buy body camera systems. Part II also hones in on Missouri Revised Statutes § 610.02312 –  which prevents local governments from handing off to “any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”

As with other technology issues, the development within one segment of technology of a single standard for the industry to use – think VHS supplanting Betamax video cassette tapes, or Blu-ray beating HD DVD – leads to de facto national standards. For digital data captured by police body cameras, the issue of rapidly advancing technology creates conflicts with traditional Sunshine Law requirements. Law enforcement seeking storage capabilities find third-party contractors eager to provide solutions, but these solutions do not easily allow meeting statutory open-record mandates. Missouri § 610.023, read plainly, does not allow much wiggle room on the topic.

In Part III, the article examines why a single exception to the physical custody requirement of Missouri’s Sunshine Law, combined with the common natural progression of technological innovation, could lead to changes in how Missourians may access their public documents – including police camera footage. Finally, this article points out that a single sentence in the governing statute could be the key to allowing third-party vendors to play a larger role in processing both police body camera footage and requests from the public for that data.

Part I: New Technologies and Long-Held Battles Create the Need for Recording and Retention of Interactions Between Police and The Public

While body cameras have been embraced by the public and many leaders in law enforcement, the issue of paying for the cameras and related costs has given pause to many cities.13 As technology continues to make the cameras and hardware better, the price of data storage has remained static. Typically, the plastic-encased cameras are about the size of a cell phone and include a clip. Smaller models can be attached to sunglasses or a hat.14 Prices range from $120 to $900, and include options like high definition, water resistance, and night vision.15 Following a shift on the streets, law enforcement officers may take up to an hour to upload data. Depending on the requirements of their jurisdiction, time spent uploading may replace incident reports that were once written entirely on paper forms. Because local departments would need massive storage upgrades to store body camera footage, cloud-based storage is widely considered the only option in the industry. Cloud storage is the use of a network of computer servers connected through the internet.16 Each officer outfitted with a body camera may generate between 1.5 and 2 terabytes of data annually.17 For comparison, a single terabyte can store as many as 728,177 floppy discs or 1,498 CD-ROM disks.18 Individual body cameras purchased by most departments are estimated to cost between $400 and $1,000 per officer. That figure, however, pales in comparison to the costs associated with storing the footage.19

Some early adopters of the technology are stepping back from body cameras after seeing high data storage costs and personnel work time, which are estimated to cost more than $1,200 annually per camera and an hour of data uploading per shift.20 Technological advances led to the use of body cameras by police officers – and further innovation will make the use of more police cameras a question of how, not if, they come to virtually every law enforcement agency. Even if cities could swallow camera and data storage costs, the advent of body cameras spark myriad issues. Costs to edit include both time and content as departments releasing video footage must be able to edit the file to meet Sunshine Law requests. Privacy concerns may be associated with some police interactions that occur inside residential homes and around minors and other parties. Departments must be able to edit video and make timely responses to Sunshine Law requests.

To solve the problem, certain companies have offered solutions for overburdened law enforcement organizations. Among the industry’s giants is Axon, formerly known as Taser. The company has branded its name onto body camera footage.21 Axon has offered police departments free body cameras, in addition to a year of free data storage.22 Axon, which sold an estimated three-fourths of all body cameras as of 2016, is expected to profit much more with its subscription cloud storage program for cameras, Evidence.com.23 The website allows district attorneys and other law enforcement offices to view the footage by using a special browser. New York’s police department, facing a court order to begin a pilot program for body cameras, decided to outfit 1,000 officers with VIEVU, Axon’s rival.24 The complicated nature of data storage and formatting standards were made public when VIEVU, Axon’s biggest competitor, described its view of the free camera offer. “Axon’s publicity stunt is at best unethical and at worst illegal,” the Seattle-based company said in a statement. “These so-called ‘free cameras’ come with significant internal implementation costs for law enforcement agencies that will be left with unusable raw data at the end of the year-long trial period.”25 Of note, Axon acquired VIEVU in May 2018.

David McClure, a justice systems scientist and research associate with the non-partisan Urban Institute’s Justice Policy Center, explained that the data collected through police body cameras creates big business for body camera companies.26 For example, Axon’s Evidence.com platform offers police departments audio and video transcription services, automated redaction, evidence auditing trails, CJIS-compliant data security, and more.27 “On the business side of police body worn cameras, the most important thing is the data,” McClure said. “Police body cameras can seem like a simple and intuitive policy solution, but things can quickly become complicated and expensive once policymakers need to make decisions about how to handle the data these cameras collect.”28

Part II: Looking to the Statutes

What Does Missouri Law Say?
Missouri’s laws will carry enormous weight as technology changes public information requests. Missouri is one of 23 states (and the District of Columbia) to have passed legislation to address body camera data and open record laws specifically. Approved in 2016, Missouri has now added references to “mobile video recordings” to § 610.100,29 the statute governing definitions of arrest records and incident reports. The law requires video recordings of arrests to be maintained by local departments and limits recordings in non-public locations to be private unless requested by a person or close relative of the person recorded in the video.30 Anyone is allowed to file an action at the circuit court level to have video data disclosed, and courts are required to consider the benefit to the person bringing the action in relation to the harm imposed on the public, law enforcement, or any person in the recording.31 The statute also provides:

(3) In making the determination as to whether a mobile video recording shall be disclosed, the court shall consider:
(a) Whether the benefit to the person bringing the action or the benefit to the public outweighs any harm to the public, to the law enforcement agency or any of its officers, or to any person identified in the mobile video recording with respect to the need for law enforcement agencies to effectively investigate and prosecute criminal activity;
(b) Whether the mobile video recording contains information that is reasonably likely to disclose private matters in which the public has no legitimate concern;
(c) Whether the mobile video recording is reasonably likely to bring shame or humiliation to a person of ordinary sensibilities; and
(d) Whether the mobile recording was taken in a place where a person recorded or depicted has a reasonable expectation of privacy.32

More specific than § 610.100, however, is § 610.023. In that section, the legislature recognized a trend of local governments entering into contracts with large third-party information vendors during the 1990s.33 The vendors typically had contracts granting them exclusive rights to manipulate and distribute government records. The law specifically states that no government entity shall “grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”34 Section 610.023 has been viewed as a way of protecting taxpayers from being forced to pay a commercial operation for merely accessing data owned by Missouri citizens.35

Additionally, § 610.024 requires public bodies to separate information deemed not public information from otherwise public information when responding to Sunshine Law requests.36 While editing and redacting documents is time consuming, editing video requires additional skills with more potential ramifications than most documents.

While public debate over body camera footage dissemination is often perceived as divided between pro-law enforcement and anti-government factions, much concern has come instead from individual privacy interests. The release of unedited video or a picture and name, combined with the viral nature of social media, creates a long list of potential legal and moral concerns.37 The release of video and pictures is at the feet of local records custodians.

Whether third-party entities can become custodians of body camera footage may depend on whether they are deemed a “custodian” with a “primary purpose” of contracting with states. The state has generally not allowed local governments to avoid Sunshine Law responsibilities merely through the creation of a separate governmental body or board.38

The state’s case law has fleshed out much of the meaning of Missouri’s Sunshine Laws, including whether a government department’s opportunity to receive federal grant money can be used as a reason to limit law enforcement incident reports.39 One of Missouri’s most cited decisions involving § 610.023 held that when a board of directors created by a public hospital had been appointed by the city to be a records custodian, this required compliance with state Sunshine Laws and responses to public requests.40 Such responsibilities may not extend to separately created entities that are not created solely to handle government business.41 Companies acting merely as conduits for data created by a government department may not be deemed “custodians.”

And one of Missouri’s leading appellate cases concerning “custodians” and responsibilities of responding to Sunshine Law requests held that a state IT department, acting only as a facilitator of data for a different governmental department, had no obligation to facilitate a Sunshine Law request and could not release information while responding to a request from the public.42 Courts, however, have held law enforcement departments in Missouri accountable when they attempt to avoid Sunshine Law requests based on the request lacking specificity in terms of the department head responsible as records custodian.43 Law enforcement has also frequently invoked the exemption for internal employee records for requests about employee discipline, often with mixed results.44

The balance of privacy versus public interest has also instructed holdings of whether government departments are responsible to respond to certain Sunshine Law requests.45 Many cases favor transparency,46 and often allude to a deference toward transparency to meet U.S. Constitutional and state statutory requirements.47 When instances occur where some content in a response to Sunshine Law requests is exempted, state courts have asked the responding entity to separate exempted from public material to release what can be made public.48

That deference toward making information public is not absolute. Missouri’s highest court in 2016 issued a ruling that is likely to discourage some potential plaintiffs of Sunshine Law cases concerning any public information. In Laut v. City of Arnold,49 the court held even when a city does violate Sunshine Law requests after police employees illegally accessed individuals’ personal records held in a regional law enforcement database, as long as the errors were not knowing or purposeful, plaintiffs weren’t owed penalties or attorneys’ fees. (The issue of the scope of a “knowing violation” versus a “purposeful” one is a separate issue and too lengthy to address in the context of this article.)

How Have Other States Treated Body Camera Footage and Other Public Documents?
Nationally, courts appear to be mostly consistent with Missouri caselaw. Persuasive precedent favors transparency, buffeted by protection of privacy interests for citizens and upholding the duty of public bodies to turn over open records requests in good faith.

Balancing those interests has led to different results, occasionally within the same state. Appellate courts in New York have affirmed the public interest in body camera footage.50 Most recently, a federal district court in California balanced public interests and the violation of a court order when considering body camera footage of officers breaking the leg of a woman who refused to let them into her home without a warrant.51 Though the woman was required to pay $69,000 through her attorneys for posting the video in violation of a court order, her $7 million settlement with the city remained in place.52 The court found similarly in Mendez v. City of Gardena, in which body camera footage was unsealed after media organizations intervened and persuaded the court that protecting judicial documents was less valuable than the importance of the First Amendment and transparency.53 In New Jersey, a superior court judge ruled in September 2018 that body camera footage should not automatically fall under a criminal investigation exemption. A showdown over proper exemption of police camera footage may loom,54 as the superior court decision followed the Garden State’s supreme court holding that police dash camera footage should be exempted.55

In cases dealing with public documents in general, holdings have turned on the issue of whether information is in the state’s physical possession and custody – or if the material is copyrighted. Courts around the United States have also considered the validity of prices charged for Freedom of Information Act responses, weighing access to public information with realistic concerns for departments that are occasionally charged with combing through many detailed reports to answer citizen requests. The sheer cost of examining, editing, and releasing information can also be a detriment both to the public department and the information requester – particularly in jurisdictions with small budgets and limited technology.56 Perhaps more meaningful to criminal defendants and others captured by body camera footage in the future, the U.S. Supreme Court has held for decades that private parties may not intervene to enjoin the release of information under the federal Freedom of Information Act.57

As a testament to the breadth of ripe challenges able to be made under state and federal open record procedures, rulings in the summer of 2018 demonstrate the relevance of transparency amid the explosion of available footage from body cameras.58 Similar to apparent contradictions in state courts mentioned in the article’s previous section, regions and federal circuits often show the difficulty of balancing public interest with individual rights.59 When the rights of third parties are considered, courts have held in favor of releasing as much information as possible with appropriate redactions.60 In August 2018, a court allowed the family of a woman killed by police to obtain body camera footage of the event for the purpose of pursuing legal claims against the city and law enforcement individuals.61 Other persuasive decisions62 have turned63 on control and possession of records and on the term “custodian.”64 Third-party vendors have typically been held to the same standards as the government departments for which they work.65 Not even copyrighted materials in the custody of public departments have been protected from open record requests.66 On the other hand, departments keeping video evidence may retain other advantages of being the custodian while getting the benefit of the doubt for missing or limited video footage. Courts have considered the control police have of video from the time of incident up until discovery motions at trial. Appellate courts in Ohio (in 2018),67 Delaware (in 2017),68 and federal district courts69 have examined limited or lost footage sought by private citizens in their actions, including a federal court holding in favor of a plaintiff objecting to “widespread and inconsistent redaction of documents.”70 Attempts to exempt information by citing laws like the Family Educational Rights and Privacy Act of 1974 have similarly come under fire.71

Among the nation’s weakest state public information laws is North Carolina’s, which has faced criticism for allowing police to determine what body camera footage may become public, for any reason.72 North Carolina’s public records law exempts all records of criminal investigations. The state defines “record” as “information that pertains to a person or group of persons that is compiled by a public law enforcement agency in an effort to anticipate, prevent, or monitor possible violations of the law.”73 Calls for reform of the records law in light of body cameras are likely to spread throughout the United States.74  Even so, advocates for more government transparency might hesitate to open floodgates of body camera or other information too wide. Several states enforce swift repercussions for public agencies that share information in violation of information statutes.75

Part III: Development of a Standard Could Lead to Loophole

The Nature of Technological Assimilation May Exempt Body Camera Footage From Missouri’s Sunshine Law
The tremendous increase in stored data needs, combined with important policy decisions necessary for the maintenance and release of videos to the public, leave a void. This void is one that private security vendors like Axon are eager to fill. If one, two, or even a few vendors provide body camera storage services to several large law enforcement agencies, a de facto national standard will have been created.76 Other technologies with similar aims of safeguarding data, including data encryption,77 have seen de facto national standards emerge to fill critical needs dictated by the government data market. This pattern of a single standard coalescing technological advancements is consistent throughout the post-internet era.78 Politicians and philosophers alike have criticized consolidation of information channels, including Facebook and Twitter, and the subsequent monopoly of news and opinion now wielded by social media giants.79

The application of new, national de facto standards for the gathering, storage, and release of body camera footage could well qualify for § 610.023(2)’s exception.80 Because many technology and software-driven industries evolve from the introduction of several new forms to the emergence of one or a few leading standards,81 Axon could well become the standard model. As in similar industries,82 the two could even work together to create a single technological standard for police body camera video storage and software. Many have opined on the benefits and perils of market-driven technological standards83 —  and whether84 the government should intervene85 in standard setting and data collection.

Model Legislation to Address Concerns Re: Public Information

Missouri’s § 610.023’s exception allowing government departments to contract the custodianship of public documents may prove to be the state Sunshine Law’s single yet most important sentence. While “regulators” are singled out as the reason government departments may be allowed to contract public information custodianship, the practicality and efficiency offered by third-party vendors such as Axon seems tailor-made to create needed uniformity among police departments and sheriff’s offices throughout the state.

“It is the fundamental policy of the Missouri Sunshine Law to foster openness in government.”86 As both Missouri courts and the legislature have made plain, the very purpose of Missouri’s Sunshine Law is to bring access of public information to the people.

Since the purpose of Missouri’s Sunshine Law is tied closely to both public access to information and protection of individual privacy, Missouri can protect both interests while maintaining a realistic approach as technology changes law enforcement and boosts the volume of available information. Model legislation could retain the current language of §§ 610.023 and 610.100 while ensuring body camera footage and other public information is accessible by the public. The legislation could merely be modified by adding:

Public information requests made through Missouri’s Sunshine Law shall be processed at the local government office level, regardless of whether such information is stored on third-party servers, is maintained by third parties, or is permanently or temporarily in the possession of any other individual, entity, or state department. No exceptions shall be applied to this portion of the law.

Such an addition would maintain the law’s strength in keeping the gates of government open to Missouri citizens. Perhaps more importantly, the model legislation would ensure department employees and the elected officials that oversee them remain responsible for responding to Sunshine Law requests.


From Missouri’s streets to its highest appellate and Supreme Court chambers, law enforcement body cameras will continue to usher in a new era of legal interpretation, much of it guided by § 610.023. Missouri’s Sunshine Law has a strong foothold in the promotion of public access to all government-created documents – which makes the third-party custody of body camera footage less likely. As stated throughout this article, however, the single exception to § 610.023 for purposes of conforming to uniform standard met by other states could pave the way for Missourians to be forced to go through a third party to access body camera footage – against the apparent intentions of the legislature that crafted the law. This appears likely, as body camera data technology shares similar goals and trajectory with other emerging data innovations.87

Legislation like the model legislation proposed in this article could do much to recognize rapidly changing technology while strengthening Missouri’s traditionally well-regarded Sunshine Law. Regardless of actions taken at the local level or interpretations made much later, the twin tent poles of transparency and individual privacy will guide much of the coming caselaw. Courts would do well to remember a phrase from an oft-cited appellate opinion in the mid-1990s – a period of time bridging the “Show-Me State’s” navigation of post-analog technologies to an era of cameras recording every law enforcement officers’ move: “The open meetings and records law recognizes that the public has an interest in seeing how its government operates…”88


1  Jean Maneke, principal at The Maneke Law Group, L.C., represents a number of media entities, including the Missouri Press Association, and in that role has worked with state legislators in crafting a number of changes to the state’s open meetings/open records law during her career.  

2  Charles Morasch graduated from the University of Missouri – Kansas City School of Law in May 2019 and was admitted to The Missouri Bar in September 2019. His passion for the First Amendment comes from 15 years of journalism experience before law school. Since October, he has worked to analyze data breaches and cybercrimes and claims for AXIS Capital.

3  Ron Plants, Buffalo Police Look at Bodycams, Video Release, WGRZ.com (Sept. 18, 2018, https://www.wgrz.com/article/news/local/buffalo-police-look-at-body-cams-video-release/71-596041959.

4  WGRZ staff, Six Shots Fired in Deadly Buffalo Police Involved Shooting, WGRZ.com (Sept. 17, 2018, https://www.wgrz.com/article/news/local/six-shots-fired-in-deadly-buffalo-police-involved-shooting/71-595424888.

5 Hannah Grover, Body Camera Footage Clears Officer’s Name, Farmington Daily Times (Feb. 2, 2017, https://www.daily-times.com/story/news/local/farmington/2017/02/02/body-camera-footage-clears-officers-name/97401294/.

6  Jennifer De Pinto, Sarah Dutton, Anthony Salvanto & Fred Backus, Michael Brown and Eric Garner: The Police, Use of Force and Race, CBS News(Dec. 10, 2014, https://www.cbsnews.com/news/michael-brown-and-eric-garner-the-police-use-of-force-and-race/.

7  Anthony Braga, James R. Coldren, William Sousa, Denise Rodriguez & Omer Alper, The Benefits of Body-Worn Cameras: New Findings From a Randomized Controlled Trial at the Las Vegas Metropolitan Police Department, https://www.cna.org/cna_files/pdf/IRM-2017-U-016112-Final.pdf (2017).

8  See Peter Hermann, Police Officers with Body Cameras Are as Likely To Use Force as Those Who Don’t Have Them, Wash. Post (Oct. 20, 2017, https://www.washingtonpost.com/local/public-safety/police-body-camera-study-finds-complaints-against-officers-did-not-drop/2017/10/20/4ff35838-b42f-11e7-9e58-e6288544af98_story.html?noredirect=on&utm_term=.56b7f089fb2a. Police chiefs have called for more cameras to create clear, unbiased accounts of citizen-officer interactions, and pointed to evidence that use of force does not decrease due to the officers wearing body cameras.

9  Justin Sink, Obama to Provide Funding for 50,000 Police Body Cameras, The Hill (Dec. 1, 2014), https://thehill.com/homenews/administration/225583-obama-to-provide-funding-for-50000-police-body-cameras.

10  Samantha Manning, How many police departments use body cameras, surplus military equipment?, WPXI (July 2, 2020), www.wpxi.com/news/investigates/how-many-police-departments-use-body-cameras-surplus-military-equipment/4D4GW577L5BYDIVOJ4YV2YEWSQ/.

11   Section 610.023, RSMo (2018). (“Each public governmental body shall make available for inspection and copying by the public of that body’s public records. No person shall remove original public records from the office of a public governmental body or its custodian without written permission of the designated custodian. No public governmental body shall, after August 28, 1998, grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”).

12  Section 610.023, RSMo (2018).

13  See Body-cameras a worthwhile but expensive tool, law enforcement says, Bakersfield.com (Mar. 5, 2016, https://www.bakersfield.com/news/breaking/body-cameras-a-worthwhile-but-expensive-tool-law-enforcement-says/article_bbeec64f-4ab1-5765-be61-4549c846344e.html.

14  Here’s How Police Body Cameras Work, NBC News.com (Dec. 2, 2014, https://www.nbcnews.com/tech/innovation/digital-partner-heres-how-police-body-cameras-work-n259211.

15  Id.

16  See Adam Clark Estes, What Is the Cloud and Where Is It?, Gizmodo (Jan. 29, 2015, https://gizmodo.com/what-is-the-cloud-and-where-is-it-1682276210 (“If your data lives ‘in the cloud,’ it actually lives on a company’s server, and you more or less pay a membership fee to work in that company’s sandbox. Depending on that company’s terms of service, you may or may not actually own or control that data once it lives in cloud storage. This raises a few glaring concerns in terms of security and privacy.”).

17  Telephone interview with David McClure, justice systems scientist and research associate, Urban Institute’s Justice Policy Center (Sept. 21, 2018).

18  Tim Fischer, Terabytes, Gigabytes, & Petabytes: How Big Are They?, Lifewire (May 10, 2018), https://www.lifewire.com/terabytes-gigabytes-amp-petabytes-how-big-are-they-4125169.

19  Jason Kowtowski, Money, Storage Primary Obstacles in Police Body Camera Implementation, Bakersfield Californian (Mar. 5, 2016, https://www.bakersfield.com/news/breaking/body-cameras-a-worthwhile-but-expensive-tool-law-enforcement-says/article_bbeec64f-4ab1-5765-be61-4549c846344e.html.

20  Tamara Vaifanua, Pleasant Grove Police Scraps Body Cams; Cites High Cost of Storage, Fox13now.com (Oct. 11, 2016), https://fox13now.com/2016/10/11/pleasant-grove-police-scraps-body-cams-cites-high-cost-of-data-storage/.

21  See embedded video at Brendan Koerner, It Started as an Online Gaming Prank. Then It Turned Deadly, Wired (Oct. 23, 2018), https://www.wired.com/story/swatting-deadly-online-gaming-prank.

22  Jackie Wattles, This Company Is Offering Free Body Cameras to Every Cop in the U.S., CNN (Apr. 5, 2017), https://money.cnn.com/2017/04/05/technology/police-body-camera-taser-international-axon/index.html.

23  Elizabeth Joh, Free Police Body Cameras Come with a Price, Slate (Apr. 5, 2017), https://slate.com/technology/2017/04/taser-international-now-axon-offers-police-free-body-cameras.html.

24  Graham Rayman, NYPD Declines Taser Maker’s Offer of Free Body Cameras for Every Cop in U.S., N.Y. Daily News (Apr. 5, 2017), http://www.nydailynews.com/news/national/taser-gun-maker-offers-free-body-cameras-u-s-article-1.3021093.

25  Id.

26  Supra NBC News note 15, at https://www.nbcnews.com/tech/innovation/digital-partner-heres-how-police-body-cameras-work-n259211.

27  See axon.com, https://www.axon.com/products/evidence (last visited Dec. 17, 2018).

28  Telephone interview with David McClure, justice systems scientist and research associate, Urban Institute’s Justice Policy Center (Sept. 21, 2018).

29  Section 610.100, RSMo (2019).

30  Id.

31  Id.

32  Id.

33   Section 610.023, RSMo (2019).

34  Id.

35  Jean Maneke, The Sun Shines a Little Brighter: Changes to Chapter 610, 55 J. Mo. B. 22, 23, (1999).

36  “We also held that [Mo. Rev. Stat. § 610.024.1] applies also and requires any non-exempt material to be separated from any exempt material so that it can be disclosed.” Laut v. City of Arnold, No. ED101801 (Mo. App. E.D. Oct. 6, 2015). See also Laut v. City of Arnold, 491 S.W.3d 191 (Mo. 2016), where the Supreme Court of Missouri held a city must knowingly or purposely violate a state Sunshine Law before being subject to penalties.

37  In October 2018, Jackson County, Missouri, prosecutors said two murders in a public area resulted in one victim’s family learning of a man’s death by seeing a violent picture posted from the scene onto social media. Kaitlyn Schwers, 21-Year-Old Took Marijuana From Dead Man’s Hand Following KC Shooting, Records Say, Kansas City Star (Oct. 5, 2018), https://www.kansascity.com/news/local/crime/article219574585.html.

38  North Kan. City Hosp. Bd. of Trustees v. St. Luke’s Northland Hosp., 984 S.W.2d 113, 1998 (Mo. App. W.D. 1957).

39  Bauer v. Kincaid, 759 F. Supp. 575 (W.D. Mo. 1991), holding that campus police incident reports were subject to Missouri Sunshine laws because they were in the control of the state board of regents and should be turned over to the editor of a university newspaper.

40  E.g., North Kansas City, 984 S.W.2d at 113.

41  Just two years after North Kan. City Hosp. Bd. of Trustees, an appellate court criticized that holding, saying a “quasi-governmental” association of insurance commissioners doing business with states should only be considered public if the entity’s primary purpose included carrying out state business. (SNL Secs v. National Ass’n of Ins. Comm’rs, 23 S.W.3d 734 (Mo. App. W.D. 2000).

42  State ex rel. Daly v. Info. Tech. Servs. Agency, 417 S.W.3d 804 (Mo. App. E.D. 2013).

43  See Pennington v. Dobbs, 235 S.W.3d 77 (Mo. App. S.D. 2007), holding that a pro se inmate was due responses to his request for public documents. A police chief had denied being the custodian of the requested documents, and the sheriff did not reply to the Sunshine Law requests.

44  See Chasnoff v. Mokwa, 466 S.W.3d 571 (Mo. App. E.D. 2015), holding that an investigation into St. Louis police officers scalping confiscated World Series tickets was held not to be exempted from a lawful request under § 610.023.

45  Jones v. Hous. Auth. of Kan. City, 174 S.W.3d 594 (Mo. App. W.D. 2005), (holding that not disclosing highly personal identifying information in records of public housing tenants trumped the public’s interest in the documents.)

46  Remington v. Boonville, 701 S.W.2d 804, 1985 (Mo. App.  W.D. 1985), (holding that a property adjustment board improperly closed a meeting when discussing the merits of a builder’s permit application.) “The court also reasoned that the exemption to the ‘Sunshine Law’ that Mo. Rev. Stat. § 610.025(1) provided for certain judicial activities, but not any activity of an administrative board, showed an intent to subject the board’s deliberative sessions and all of its other meetings to the open meeting requirements of the ‘Sunshine Law.’”

47  ACLU of Mo. Found. v. Mo. Dep’t of Corr., 504 S.W.3d 150 (Mo. App. W.D. 2016) (holding a trial court was correct in finding the state department of corrections willfully violated Missouri’s Sunshine Law by redacting names of chemical suppliers used in administering euthanasia.) Others parse favoring the naming of entities as public while keeping open investigations private.

48  News-Press & Gazette Co. v. Cathcart, 974 S.W.2d 576 (Mo. App. W.D. 1998) (holding a medical examiner’s office to be a public body but said an autopsy was an investigative report, and therefore could be exempted from the court’s interpretation of the state Sunshine Law.)

49  491 S.W.3d 191 (Mo. 2016).

50  Matter of Time Warner Cable News NY1 v. New York City Police Dept., 53 Misc. 3d 657, 36 N.Y.S.3d 579 (2016), (holding that a TV reporter’s FOIA petition to the New York Police Department did not unduly burden the city by creating a need to remove or blur some portions of body camera footage likely subject to FOIA exemptions. The city was not allowed to pass those editing costs on to the reporter.)

51  Harmon v. City of Santa Clara, 323 F.R.D. 617 (N.D. Cal. 2018), The city agreed to a $7 million settlement one day before the plaintiff posted 12 minutes of the video on YouTube, linking it to Facebook – violating a court order that the video remain sealed. The court did allow for $69,000 in fees to be paid by the plaintiff’s attorneys to the city and individual officers for their role in advising her to release the video.

52  Id.

53  222 F. Supp. 3d 78= (C.D. Cal. 2015). (The case involved three of four officers opening fire on unarmed suspects after a robbery and bicycle theft at a CVS pharmacy.)

54  Samantha Marcus, Judge Rules N.J. Police Body Camera Footage Can Be Released To The Public, NJ Advance Media (Sept. 24, 2018), https://www.nj.com/politics/index.ssf/2018/09/court_rules_body_camera_footage_be_released_not_ex.html.

55  Paff v. Ocean County Prosecutor’s Office, 235 N.J. 1, 192 A.3d 975 (2018) (holding that footage from a dashboard camera was part of an investigatory record, and therefore not subject to release under the state’s Open Public Records Act.)

56  King v. Mich. State Police Dep’t, 841 N.W.2d 914 (Mich. Ct. App. 2013) (ruling that a murder victim’s family’s request for information from Michigan State Police about a serial murderer investigation legitimately required $5,600 in charges to be paid by the family.)

57  Chrysler Corp. v. Brown, 441 U.S. 281 (1979).

58  MuckRock, LLC v. CIA, 300 F. Supp. 3d 108 (D.C. 2018) (holding that a private company’s challenge of FOIA policies at the Central Intelligence Agency should be upheld, including a request for the CIA’s email response policy itself.)

59  Two federal appellate rulings out of the D.C. circuit have demonstrated competing interests prompted by body cameras. In July 2018, the court held that Washington D.C. law enforcement could not shift the burden of body camera footage inspection, redaction, and release to a plaintiff suing after his criminal arrest (United States v. Johnson, 314 F. Supp. 3d 248 (D.D.C. 2018). Weeks later, the court held body camera footage must be obtained by submitting FOIA requests specifically. United States v. Kingsbury, 325 F. Supp. 3d 158 (D.D.C. 2018).

60  Compare Kagan v. Ginsberg (Conn. Super. Ct., 1997), where a daycare provider plaintiff FOI’d documents related to an investigation of child abuse against her business, but state commissioner declined, saying information related to third parties would be compromised, violating exemptions of the FOI law, with Sargent v. Seattle Police Dep’t, 314 P.3d 1093 (Wash. 2013), (where the Washington State Supreme Court held a police department’s decision improper after the department denied a request for a criminal investigation report after the investigation was complete and the case was turned over to a prosecutor for a charging decision.)

61  Steele v. City of Burlington, 334 F. Supp. 3d 972 (S.D. Iowa Aug. 14, 2018).

62  Compare Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009), where a Pennsylvania court reversed an administrative law judge’s decision that an agency had to have immediate, physical possession of a record in order to be required to produce it under the Pennsylvania open records law, with Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d 932 (Pa. Commw. Ct. 2014), holding that personal communications and payroll information of private companies unrelated to government business were not public documents.

63  One potential danger for those seeking transparency includes the hassle of wading through semantics when determining the proper custodian of a record.  In Transparent GMU v. George Mason Univ., 97 Va. Cir. 212 (Cir. Ct. 2017), a court held that a university was not a custodian. Instead, a doctor serving as university vice president and as president of the university foundation was the custodian and had served in that function not through her power as university vice president but in a capacity solely through the foundation. The public record request was denied. The court said Virginia’s law requires a public body to produce records it possesses but does not require them to search for records held by third parties.

64  State ex rel. Cincinnati Enquirer v. Hamilton County, 662 N.E.2d 334 (Ohio 1996) (holding that even 911 tapes in custody of employees who were not police investigators were subject to freedom of information requests).

65  Project Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320 (N.D. Ga. 2016) (holding that a political group filing an information request from a third-party vendor responsible for maintaining voter registration records failed to properly provide enough information to obtain a response).

66  Ali v. Phila. City Planning Comm’n, 125 A.3d 92 (Pa. Commw. Ct. 2015) (holding that copyrighted materials submitted to a city planning commission could be disseminated after a public records request despite their nature as copyrighted materials.)

67  See State v. McGuire (Ohio App. 2018), (holding that a felony murder defendant had no evidence police destroyed body camera footage in bad faith, and therefore, even if his allegation of Brady violations combined with his own self-defense were correct, the criminal defendant had no case (citing Arizona v. Youngblood, 488 U.S. 51 (1988). “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”)

68  State v. Moore, 2017 No. 16006943 (Del. Super. Ct.) (holding in favor of police in a destruction of body camera evidence case after a car-driving defendant denied giving consent to search the vehicle. The officer believed his body camera was on, but later learned there was no footage of the consent request and alleged approval. The court gave the officer the benefit of the doubt.)

69  Reeners v. Troup (M.D. Tenn. 2017), holding that it was “concerning” that body camera footage never showed a face to face evaluation of psychosis for an arrestee examined after allegedly threatening city employees and acting unstable.

70  Id.

71  Kirwan v. The Diamondback, 721 A.2d 196 (Md. 1998) (holding that the school could not cite federal obligations under FERPA as a reason to deny information under the state’s sunshine law regarding whether university basketball players and coaches obtained parking tickets.)

72  Cf. N.C. Gen. Stat. § 132-1.4 (2018).

73  Id.

74   Brian Liebman, The Watchman Blinded: Does the North Carolina Public Records Law Frustrate The Purpose of Police Body Cameras? 94 N.C.L. Rev. 344, 344 (2015).

75  Stromberg Metal Works, Inc. v. Univ. of Md., 382 Md. 151, 854 A.2d 1220, describing how Maryland’s public information laws favor interpretations of transparency, but also carry both civil and criminal penalties for any individual who knowingly and willfully permits inspection of a public record in violation of the PIA.

76  Similar de facto standards have been created with requirements for state programs like RealID. Tarun Wadhwa, We Don’t Need A National ID Card, Forbes (Feb. 6, 2013),  https://www.forbes.com/sites/tarunwadhwa/2013/02/06/the-washington-post-got-it-wrong-we-dont-need-a-national-id-card/#5c7e763d3a76.

77  Arxan Cryptographic Key And Data Protection Awarded FIPS 140-2 Certification, Marketwired (Feb. 28, 2017), https://finance.yahoo.com/news/arxan-cryptographic-key-data-protection-140000370.html.

78  See Antitrust and the Internet Standardization Problem, 28 Conn. L. Rev. 1041, 1052, describing the “nature of the Internet, and indeed of most computer software markets, is such that a single standard is likely to emerge as the dominant one at each of several levels of performance.”

79  See David Kaye, Commentary: How To ‘Fix’ Social Media Without Censorship, Reuters.com, (June 20, 2018), https://uk.reuters.com/article/us-kaye-media-commentary/commentary-how-to-fix-social-media-without-censorship-idUKKBN1JF34H. (“Even democratic societies resent this power over their public space. As one liberal European politician put it, ‘No one wants a Ministry of Truth, but I am also not reassured when Silicon Valley or Mark Zuckerberg are the de facto designers of our realities or of our truths.’”)

80  Section 610.023 (1): “Each public governmental body shall make available for inspection and copying by the public of that body’s public records. No person shall remove original public records from the office of a public governmental body or its custodian without written permission of the designated custodian. No public governmental body shall, after August 28, 1998, grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.”

81  See Tim Hanlon, HD DVD vs. Blu-Ray: The Endgame, Newsatlas.com, (Feb. 12, 2008), https://newatlas.com/hd-dvd-vs-blu-ray-the-endgame/8803/.

82  See United States v. Visa U.S.A., Inc., 163 F. Supp. 2d 322, 356 (S.D.N.Y. 2001), where when considering anti-trust and Sherman Act violations between Visa and Mastercard, the court weighed benefits for consumers when competitors work for a single technological standard, “…it is desirable to have some cooperation in setting the standards for the development of security technology for e-commerce.”

83  See Richard Stern, Who Should Own the Benefits of Standardization and The Value It Creates?, 19 Minn. J.L. Sci. & Tech. 107 (2018).

84  See Adam Thierer, The Internet of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, 21 Rich. J.L. & Tech. 6, 62-63 (2015). “Moreover, the sophistication of many of these devices and the sheer amount of data they collect make it difficult to devise a workable notice and choice regime that can foresee every possible misuse. As the recent White House Big Datareport noted, ‘Big data technologies, together with the sensors that ride on the “Internet of Things,” pierce many spaces that were previously private. Always-on wearable technologies with voice and video interfaces and the arrival of whole classes of networked devices will only expand information collection still further. This sea of ubiquitous sensors, each of which has legitimate uses, make the notion of limiting information collection challenging, if not impossible.’”

85  Cf. Stacy Baird, Ethical Reflections On The Future of Technology Policy: The Government At The Standards Bazaar, 18 Stan. L. & Pol’y Rev 35 (2005), (favoring little governmental interference of the setting of technological standards.)

86  Bauer v. Kincaid, 759 F. Supp. 575, 581 (W.D. Mo. 1991).

87  Visa, 163 F. Supp. 2d at 322, 356.

88  State ex rel. Missouri Local Gov’t Retirement Sys. v. Bill, 935 S.W.2d 659 (Mo. App. W.D. 1996).

By Jean Maneke and Charles Morasch for The Missouri Bar

About the Authors

Jean Maneke
Jean Maneke, principal at The Maneke Law Group, L.C., represents a number of media entities, including the Missouri Press Association, and in that role has worked with state legislators in crafting a number of changes to the state’s open meetings/open records law during her career.

Charles Morasch
Charles Morasch graduated from the University of Missouri – Kansas City School of Law in May 2019 and was admitted to The Missouri Bar in September 2019. His passion for the First Amendment comes from 15 years of journalism experience before law school. Since October, he has worked to analyze data breaches and cybercrimes and claims for AXIS Capital.