Public Meeting Notice  Privacy and Record-Keeping Subcommittee Meeting (Law Enforcement Body Camera Task Force)

PRIVACY AND RECORD KEEPING SUBCOMMITTE

LAW ENFORCEMENT BODY WORN CAMERA TASK FORCE.

Date: December 23, 2021

Time: 2:00 PM – 3:00 PM

Place: Microsoft Teams (Virtual Meeting – access link posted publicly on mass.gov)

Subcommittee Members Present:

Alyssa Hackett, Esq., Massachusetts Criminal Defense Lawyers

Fred Taylor, National Association for the Advancement of Colored People

Hillary Farber, University of Massachusetts School of Law

Sgt. Tim King, Massachusetts Coalition of Police

Subcommittee Members Absent:

Chief Steve Sargent, Worcester Police Department

Emiliano Falcon-Morano, Esq., American Civil Liberties Union

Staff: Daniel Nakamoto, EOPSS (Board Advisor)

1. MINUTES OF THE NOVEMBER 3, 2021 MEETING

Upon motion made and seconded, it was voted to approve the minutes of the November 3, 2021 meeting.

2. MINUTES OF THE NOVEMBER 18, 2021 MEETING

Upon motion made and seconded, it was voted to approve the minutes of the November 18, 2021 meeting.

3. Revisiting of Types of Encounters and Incidents to Record

While the list of encounters and incidents was reviewed at the last meeting, Daniel did some follow up research on paid details.  He found that a few police departments did not require the wearing of Body Worn Cameras (BWC) on these details.  Officers are wearing their uniforms with some interactions with the public. The Subcommittee response was mixed with several members indicating that it was not an issue due to limited interaction with the public and one that BWCs should be worn.

4. When a camera should be activated and when to discontinue recording

The types of encounters and incidents to record were viewed at the last meeting.  Written policy and procedure of 14 local police departments were reviewed to determine current practice.  12 required an explanation for doing so and 2 did not have provisions for pausing/stopping. There were highly variable reasons for pausing/stopping – conserving recording time due the duration, not serving a police purpose, sensitive issue, supervisor request, and civilian request.

The International Association of Chiefs of Police recommend that “The BWC shall remain activated until the event is completed in order to ensure the integrity of the recording unless the contact moves into an area restricted by this policy. (Section D.4 “In any location where individuals have a reasonable expectation of privacy, such as a restroom or locker room.”)  The American Civil Liberties Union of Massachusetts recommends that “The body cameras shall not be deactivated until the encounter has fully concluded and the officer leaves the scene.”

Several members felt that recordings should not be stopped for several reasons.  One, it is a safety value officers to protect themselves from false claims.  Two, it is also a protection for civilians against adverse officer actions.  Concerns were raised about how privacy concerns are addressed.  Redaction was noted as a function that would protect privacy.  Massachusetts is a two-party consent state and officers are required to give notice of recording.  When an officer is in a private home, state privacy laws restrict officer view to what is in plain sight.   When an officer gives notice that the interaction is being recorded, how is consent addressed?  What protections does the civilian have to have it stopped?  Comm. V. Yusuf, Mass.__ (2021) was noted as a recent case offering some protections around the use of BWC recording by restricting use for unrelated purposes.

Hillary Farber suggested that the Subcommittee consider a process whereby the officer seeks an affirmative response from the homeowner/tenant/occupant before entering the home upon consent.  Should the officer be required to ask the homeowner if they object to the camera remaining on when they come inside?

The Subcommittee requested counsel from the Task Force Legal Counsel as follows.  For purposes of the Fourth Amendment of the United State Constitution, Article 14 of the Massachusetts Declaration of Rights, and the Massachusetts Wiretapping statute, is there a violation of rights if (a) a police officer enters a home prior to being given explicit permission to film inside the home, or (b) enters a home despite the resident indicating that he or she wants the officer to stop recording. 

5. A requirement preventing an officer from accessing or viewing any recording of an incident involving the officer before the officer is required to make a statement about the incident

Concern was expressed that this controversial issue would consume a lot of the Subcommittee time.  Similarly, to the Training, Supervision & Disciplinary Review Subcommittee, it was decided to defer this issue to the end so that all other issues could be addressed.

6. Considerations of issues not mandated by legislation

Several Subcommittee members identified several issues that they wished the Subcommittee to address.  Daniel noted that the legislation was not comprehensive and was scattershot in the issues they wanted the Task Force to address.  He discussed this issue with the Task Force Chair who indicated that the mandated issues needed to be addressed before moving onto issues not specifically identified in the legislation.  Time would be made to address these concerns.  Hillary Farber indicated that she believed that the issues were part of the legislative charge and were not supplemental items. 

The next meeting was scheduled for January 5^th at 12:00 Noon with a backup alternative date of January 7^th at 12:00 Noon.

The meeting was adjourned at 2:55 PM.