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: January 5, 2022

Time: 12:00 Noon – 1:00 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

Chief Steve Sargent, Worcester Police Department

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

Subcommittee Members Absent:

None

Staff: Daniel Nakamoto, EOPSS (Board Advisor)

1. MINUTES OF THE DECEMBER 23, 2021 MEETING

Upon motion made and seconded, it was voted to approve the minutes of the December 23, 2021 meeting.

2. Standards for the identification, retention, storage, maintenance and handling of recordings from body cameras, including a requirement that recordings be retained for not less than 180 days but not more than 30 months for a recording not relating to a court proceeding or ongoing criminal investigation or for the same period of time that evidence is retained in the normal course of the court’s business for a recording related to a court proceeding

Daniel reviewed department policy and procedure to determine local practice, reviewed recommendations of national groups,  and conducted research as possible.

2.a  Identification of recordings

Department Body Worn Camera policies and procedures focus its use and to a lesser degree identification of recordings.  Video recordings appear to be generally managed under property and evidence control policies and procedures.  Reviewed several department property and evidence control policies.  In general, departments date the recording, assign an incident number, location, incident category and assigned officer.  Categories are highly variable with listing 18 and others 7.

International Association of Chiefs of Police

• Date, time, BWC device used, assigned officer

American Civil Liberties Union of Massachusetts

• No details provided

A question was raised whether this issue was being addressed by the Training and Supervision Subcommittee.  (Follow up revealed that this issue was not under review by the other Subcommittee.) There was discussion and it was agreed to:

Recommend: that recordings be identified by date, time, location, incident number, type of incident and assigned officer.

2.b  Retention of recording

While the Task Force was asked to establish standards, legislative language specified that "recordings be retained for not less than 180 days but not more than 30 months for a recording not related to a court proceeding or ongoing criminal investigation or the same period of time that evidence is retained in the normal course of the court's business for a recording related to a court proceeding:"

Current local practices range from 30 days to 7 years.  It was noted that recording retention is the major cost for BWC programs.

International Association of Chiefs of Police

• Recommends recordings shall be retained in accordance with “state retention laws and no longer than useful for purposes of training or for use in an investigation or prosecution”.

American Civil Liberties Union of Massachusetts

• Recommends:

1. Body camera video footage shall be retained by the Department, or an authorized agent thereof, for six months from the date it was recorded; thereafter the footage shall be permanently deleted unless a longer retention period is required by law. 
2. Notwithstanding the retention and deletion requirements in subsection (a):

1. Video footage shall be automatically retained for no less than three years if the video footage captures images involving:

1. Any use of force;
2. Events leading up to and including an arrest for a felony-level offense, or events that constitute a felony-related offense; or
3. An encounter about which a complaint has been registered by a subject of the video footage.

2. Body camera video footage shall be retained for no less than three years if a longer retention period is requested by:

1. The officer whose body camera recorded the video footage, if the officer reasonably asserts that the video footage has evidentiary or exculpatory value;
2. Any officer who is subject of the video footage, if that officer reasonably asserts that the video footage has evidentiary or exculpatory value;
3. Any superior officer of an officer whose body worn camera recorded the video footage or who is subject of the video footage, if that superior officer reasonably asserts that the video footage has evidentiary or exculpatory value;
4. Any officer, if the video footage is being retained solely and exclusively for police training purposes, provided that such footage shall be redacted to obscure the identify of any civilian appearing therein;
5. Any member of the public who is subject of the video footage;
6.  Any parent or legal guardian of a minor who is a subject of the video footage; or
7. A deceased subject’s next of kin or legally authorized designee.

There was extensive discussion on the issue.  As the legislative language sets the standard, should it be accepted as written?  There was a concern raised about the “not more than 30 month language”.  Chief Sargent’s  department experiences a flurry of activity on cases at 36 months due the statute of limitations on civil cases.  There would be a 6 month gap from the destruction of recordings and the statute of limitations for civil cases.  Cases could be brought forward where the video recording had been destroyed.  The possibility for a 37 month maximum was raised to provide a little leeway on the 36 month statute of limitations deadline.  There was discussion on potentially recommending a carve out for some offenses but determined that it would complicate the process for law enforcement.  Members were polled and it was unanimously agreed to:

Recommend that the “not more than 30 month language” stipulated by the legislative language conflicts with the statute of limitations for civil cases and that consideration should be given to changing it to 37 months.

The “not less than 180 days” language was discussed.  Concerns were raised that the timeline is too short and would not allow sufficient time to determine the need to access recordings.  A concern was raised about increased storage fees and how increased retention would pose barriers for police departments to start BWC programs.  Questions were raised about the relative costs of storage.  (Follow up with State Police determined that storage costs were greater than the additional staffing costs.) 

Members were polled and it was unanimously agreed to

Recommend that the “not less than 180 days” stipulated by the legislative language does not allow sufficient time to determine whether recordings need to be accessed and that consideration should be given to changing it to one year.

3. Next Meeting

The next meeting was scheduled for January 14^th at 12:00 Noon.

The meeting was adjourned at 12:55 PM.