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.

Conclusion

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

Endnotes

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.

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