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: February 1, 2022

Time: 1:00 – 2:00 PM

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

 

Subcommittee Members Present:

Fred Taylor, National Association for the Advancement of Colored People

Hillary Farber, Esq., University of Massachusetts School of Law

Sgt. Tim King, Massachusetts Coalition of Police

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

Alyssa Hackett, Esq., Massachusetts Criminal Defense Lawyers

 

Subcommittee Members Absent:

Chief Steve Sargent, Worcester Police Department

 

Staff: Daniel Nakamoto, EOPSS (Board Advisor)

 

 

1. Maintenance and Handling of recordings

The New Jersey Office of the Attorney General issued a Body Worn Camera Policy (May 2021 Version) that provides governing principles for local law enforcement agencies.  New Jersey requires law enforcement agencies to use BWCs in their daily law enforcement functions.  Daniel found their section on secure storage and accessibility of BWC recordings to be comprehensive and well written.  Steve McCarthy concurred and made some minor edits to fit Massachusetts which follows.  His edits are shown.

 

Standards to Ensure Secure Storage and Accessibility of BWC Recordings

 

1. 1. Procedures to Protect Integrity of BWC Recordings. Every department shall establish and maintain a system and procedures to ensure the integrity and proper handling and storage of all BWC recordings. This system shall include provisions to: (a) ensure that all recordings are uploaded to a secure data storage system in a timely fashion; (b) prevent tampering with or deletion of recorded data both before and after downloading from the BWC and uploading to the storage system; (c) prevent unauthorized access to stored BWC recordings; (d) document all instances where BWC recordings are accessed, viewed, copied, disseminated, or deleted; and (e) permit auditing of all instances where BWC recordings are accessed, viewed, copied, or deleted.

 

The Subcommittee agreed to adopt the standard for Procedures to Protect Integrity of BWC Recordings as written.

 

1.2 Capacity to Locate Specific BWC Recordings. Every department shall establish and implement a system that permits the agency to locate and retrieve all recordings associated with a specific incident/event, investigation, case, or criminal charge. Accordingly, every department shall be required to develop and maintain a BWC control ledger or log, which may be computerized. Every department shall establish and implement a system to ensure that relevant BWC recordings are provided in discovery in a timely fashion. The system established by the agency should include a provision to ensure that police arrest/incident/continuation reports indicate whether the incident or investigative activity described in the report was electronically recorded by a BWC. Police reports should, when feasible, indicate the corresponding BWC control ledger/log number, and the BWC control ledger/log should cross-reference the incident case number if one is available. Copies of BWC recordings made for the purpose of complying with the Commonwealth’s discovery obligations shall be provided to the prosecutor in a commonly available media format.

 

The Subcommittee made a slight change and agreed to adopt the standard for Capacity to Locate Specific BWC Recordings as modified.

 

1.3 Provisions to Identify (“Tag”) Recordings That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits a notation (i.e., “tagging”) to be made when the recording: (a) captures the image of a victim of a criminal offense; (b) captures the image of a child; (c) was made in a residential premises (e.g., a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical office, a substance abuse or mental health treatment facility, or a place of worship; (d) captures a conversation with a person whose request to de-activate the BWC was declined; (e) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (e.g., verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; (f) captures the image of an undercover officer or confidential informant; or (g) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. See also Section 7.1 (requiring notice to the prosecutor when a BWC captures the image of a patient at a substance abuse treatment facility). Subject to the provisions of Section 12 of this Policy, an agency’s policy, standing operating procedure, directive, or order issued pursuant to Section 3.1 may specify additional circumstances when a BWC recording will be “tagged.”

 

The language was found to be confusing as “Tags” are commonly used to categorize the event, not make a special notation.  A rewrite was offered below.

 

1.4 Provisions to Identify Recordings That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits an event notation to be made when the recording: (a) captures the image of a victim of a criminal offense; (b) captures the image of a child under 18 years old; (c) was made in a residential premises (e.g., a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical office, a substance abuse or mental health treatment facility, or a place of worship; (d) captures a conversation with a person whose request to de-activate the BWC was declined; (e) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (e.g., verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; (f) captures the image of an undercover officer or confidential informant; or (g) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. Such notation must be permanently attached to the recorded event. Before any release of a recorded event with a special privacy or safety issue notation, the event shall be reviewed by the department’s legal staff trained to appropriately assess those issues, and if necessary, the recorded event shall be redacted accordingly before release.

 

There was discussion.  A concern was raised about the large number of items for identification and important items could be missed.  Rather than a long list, perhaps a generalized statement about privacy concerns would be better.  Others felt it was important to be specific so that there would be no confusion about what images raised privacy concerns.  The age of child was questioned.  It was agreed that for this purpose, the age of child would be under the age of 18 years.  The important role of legal staff in protecting the privacy was noted.  The need for training for the legal was emphasized.  It was noted that smaller departments did not have legal staff and relied on outsourced attorneys.  Costs to engage attorneys for this task would be burdensome for smaller communities. There was agreement to required appropriately trained staff to handle requests for release of recordings.  Finally, a concern about including the image of a victim for identification.  Others felt that the privacy of the victim was critical.

 

The Subcommittee agreed to adopt the standard for Provisions to Identify Recordings That Raise Special Privacy or Safety Issues (noted as 1.5 directly below) with modifications for the age of a child and having the reviewer for release of identified recordings to be provided by appropriately trained staff.

 

1.5 Provisions to Identify Recordings That Raise Special Privacy or Safety Issues. To identify BWC recordings that may raise special privacy or safety issues, every department that deploys BWCs shall establish and implement a system that permits an event notation to be made when the recording: (a) captures the image of a victim of a criminal offense; (b) captures the image of a child under the age of 18; (c) was made in a residential premises (e.g., a home, apartment, college dormitory room, hotel/motel room, etc.), a school or youth facility, a healthcare facility or medical office, a substance abuse or mental health treatment facility, or a place of worship; (d) captures a conversation with a person whose request to de-activate the BWC was declined; (e) captures a special operations event or execution of an arrest and/or search warrant where confidential tactical information (e.g., verbal codes and hand signals used to give direction to officers, techniques for interior movements and clearing rooms during execution of a warrant, techniques for convincing persons to open doors during warrant execution, etc.) may have been recorded; (f) captures the image of an undercover officer or confidential informant; or (g) captures the screen of a police computer monitor that is displaying confidential personal or law enforcement sensitive information. Such notation must be permanently attached to the recorded event. Before any release of a recorded event with a special privacy or safety issue notation, the event shall be reviewed by the department’s appropriately trained staff to properly assess those issues, and if necessary, the recorded event shall be redacted accordingly before release.

 

 

1.6 Approval for Access to “Tagged” BWC Recordings. A BWC recording tagged pursuant to Section 9.3 shall not be accessed, viewed, copied, disseminated, or otherwise used without first obtaining the permission of the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee. The County Prosecutor or Director may authorize the law enforcement executive, and one or more superior officers or duty positions (e.g., head of the detective bureau) identified by the law enforcement executive, to grant permission pursuant to this Section to access, view, copy, disseminate, or otherwise use BWC recordings tagged pursuant to Section 9.3. See also Section 10.1 (specifying the purposes for which access to a BWC recording is permitted).

 

It was agreed that this section would not be necessary with the previous provision of “Before any release of a recorded event with a special privacy or safety issue notation, the event must be reviewed by the department’s legal staff trained to appropriately assess those issues, and if necessary the recorded event must be redacted accordingly before release.” However, it might be appropriate to add the following:

 

1.7 Release of a BWC Recording that is the Subject of an Active Criminal Investigation/Prosecution.

Approval for release of a BWC recording that involves the subject of an active criminal investigation or prosecution shall not be given without first obtaining the permission of the Attorney General/District Attorney of jurisdiction or designee, or the department’s chief executive or designee.

 

The Subcommittee agreed to adopt the standard for Release of a BWC Recording that is the Subject of an Active Criminal Investigation/Prosecution as written.

 

1.8 Compliance with Discovery Obligations Relating to BWC Recordings That Might Expose Officers or Other Persons to Danger. If disclosure of a BWC recording as part of the Commonwealth’s discovery obligations in a prosecution might present a danger to any officer or civilian (e.g., reveal an undercover officer, confidential informant, surveillance site, etc.), or might reveal confidential tactical information the disclosure of which might jeopardize future operations or officer safety (e.g., verbal codes or hand signals used to communicate information or instructions, techniques for interior movements and clearing rooms during execution of warrant, techniques for convincing persons to open doors during warrant execution, etc.), the Attorney General/District Attorney of jurisdiction or designee, shall, in the exercise of sound prosecutorial discretion, take such steps as are appropriate and authorized by law and/or Court Rule to protect the information from disclosure, such as by seeking a protective order from the court.

 

The Subcommittee agreed to adopt the standard for Compliance with Discovery Obligations Relating to BWC Recordings That Might Expose Officers or Other Persons to Danger as written.

 

1.9 Third-Party Storage and Maintenance. If a law enforcement agency authorizes a third party to act as its agent in maintaining recordings from a BWC, the agent shall be prohibited from independently accessing, viewing, or altering any recordings, except to delete recordings as required by law or agency retention policies.

 

The Subcommittee agreed to adopt the standard for Third-Party Storage and Maintenance as written.

 

2. Other Issues for review raised by members

 

There was a brief review of these issues.  Due to time limitations, these issues will be thoroughly reviewed at the next meeting.

 

1. 1. Implementation of Commonwealth v. Yusuf:

Should the BWC task force make recommendations for best practice on how to ensure officers cannot view footage for a separate criminal investigation as was held to be unconstitutional in Yusuf?

 

1. 2. Dealing with notice and camera activation and deactivation in different use cases: entering a private residence, interacting with an apparent crime victim, interacting with a person that seeks to be anonymous and is reporting a crime, etc.

 

1. 3. Recommending a prohibition for surreptitious use of camera?

 

 

1. 4. should there be a sanction for officers’ failure to comply with non-recording or recording? What should that look like?   It was noted that this issue has been addressed by the Training and Supervision Subcommittee.  There was agreement to not review this issue.

 

 

1. 5. Who should have access to BWC footage and how should that access be managed?

 

1. 6. Redaction issues- we heard yesterday that within the State Police sometimes it is automated via the software but also human use too and that there is always an unredacted version on file until the footage is destroyed – some of this backs into privacy in terms of who and when public can see footage.

 

1. 7. other privacy protections?

 

1. 8. The use of BWC for purposes of collection of intelligence information and surveillance of First Amendment-protected activities (e.g., protests)

 

1. 9. Use of BWC in schools and under what circumstances.

 

Daniel agreed to research national group recommendation for guidance on these issues.

 

3. Next Meeting

 

The meeting was scheduled for Thursday, February 10, 2022 at 12:00 Noon.  Daniel will submit, by the end of the week, a draft of the recommendations developed so far for submission to the Drafting Subcommittee.  Subcommittee members responses must be received no later than Tuesday February 8, 2022.

 

4. Adjournment

 

The meeting was adjourned at 2:05 PM