Are body-cam videos public records?

Are body-cam videos public records?
(Originally published November 2014 at nevadapress

When police wear body cameras, are the videos considered a matter of public record?
As Las Vegas Metro police prepare to join a study in which 400 officers will wear the devices, it’s an open and largely untested question for open-records advocates. Police in Ferguson, Mo., started wearing them in September.
In Nevada and other states I’ve looked at, there is no specific exemption in law that would allow police to withhold the videos. However, there is generally a rather vague exception, in practice and upheld in court, that police investigative reports are not public as long as the investigation is active.
If a body-cam video fit that definition, then presumably it could be withheld for a time if a public-records request were made. There’s ample justification for keeping investigative reports under wraps as police are trying to solve a crime.
Body-came videos would seem to fit under the same category as dash-cam videos recorded from police cars, which are usually considered to be public record and are frequently released by police upon request. Recordings of 911 calls also are typically considered public records, although that’s not true in every state.
One difference with body-cams, though, is the potential for them to be switched on inside private residences during a search or an interview, raising privacy issues for victims or occupants who may have nothing to do with the investigation. Dashboard cameras almost always capture scenes that are on public property, such as a roadway, or public places such as a business’s parking lot.
As much as body-cams are being touted as a transparency and accountability tool, they raise many questions that have yet to be answered.
In Seattle, police may drop their plans to outfit officers with body cams over concerns that public-records request will be too burdensome. The problem there, however, extends beyond the body-cams because the anonymous request reaches for nearly everything Seattle police do.
San Diego police, on the other hand, already have turned down requests for body-cam videos on the argument they are part of their investigative tools — even though one request asked specifically for routine patrols that weren’t part of a specific investigation.
The head of a Virginia state agency that oversees public-records requests says videos that aren’t part of an active investigation are clearly public records. Washington, D.C., police have denied requests on the argument that the videos are somehow part of a police officer’s personnel file.
The only clear conclusion here is that many departments have adopted body-cams without also adopting well-thought-out policies for how the videos are to be retained and released to the public.
The ACLU has suggested a number of policies, including the ability of anyone depicted in a police video to be able to ‘flag’ it for retention. But the ACLU also says a video shouldn’t be released unless everyone in it grants consent — a troublesome concept for open-records advocates.
I’m just waiting for that body-cam video of the mayor performing roadside tests for sobriety — and not being arrested.
While there are plenty of advantages to body-cams — both for police accountability and for their protection against frivolous complaints —they are not free of legal and ethical dilemmas. And many of those questions are yet to be sorted out.
For Nevada reporters, the advice remains the same as for other public-records requests: Go ahead and ask. The responsibility is on the agency to either release the record or provide the legal justification for why it should be withheld.