RULES FOR DISCLOSURE OF BODY CAM AND DASH CAM RECORDINGS IN N.C.

<datetime=”2021-10-11T16:57:43+00:00″> In 2016, North Carolina enacted legislation, G.S. § 132-1.4A, governing the disclosure and release of “body-worn camera” (body cam) or “dashboard camera” (dash cam) recordings made by law enforcement agencies and their personnel. These procedures received national attention after the shooting death of Andrew Brown by Pasquotank County deputies in April of this year. In August, the General Assembly amended these procedures for recordings that depict death or serious bodily injury. Those amendments apply to requests for disclosure made on or after December 1, 2021. This blog will summarize the current procedures, including the August amendments.

Body cam and dash cam recordings by law enforcement agencies and their personnel are not public records as defined by G.S. § 132-1. However, if compliance with G.S. § 132-1.4A is demonstrated, the recordings can be disclosed and/or released. “Disclose” is to make the recording available for viewing or listening by the person requesting disclosure or their personal representative at a time and place chosen by the custodial law enforcement agency. Disclosure is limited to the person whose image or voice is in the recording or their personal representative. Disclosure does not include release. “Release” is to provide a copy of the recording to the person requesting disclosure or their personal representative. The procedures provide for five different types of disclosures and/or release.

1. Disclosure when the recording depicts a death or serious bodily injury.
2. Disclosure when the recording does not depict a death or serious bodily injury.
3. Release to the person whose image or voice is in the recording.
4. General release of recordings.
5. Disclosure or release for law enforcement purposes.

Here we will outline each.

DISCLOSURE WHEN RECORDING DEPICTS A DEATH OR SERIOUS BODILY INJURY
When the recording depicts a death or serious bodily injury, the personal representative of the deceased, or the person injured or their personal representative may request immediate disclosure of the recording. Personal representative includes “a parent, court-appointed guardian, spouse, or attorney licensed in North Carolina of a person whose image or voice is in the recording.” If the person is deceased, the term includes “the personal representative of the estate of the deceased person; the deceased person’s surviving spouse, parent or adult child; the deceased person’s attorney licensed in North Carolina; or the parent or guardian of a surviving minor child of the deceased.”

The person or personal representative requesting disclosure must submit a signed and notarized form provided by the law enforcement agency and approved by the Administrative Office of the Courts. This form includes a notice that the applicant will be subject to criminal penalties if the recording is unlawfully copied or recorded or knowingly disseminated. Willfully copying/recording or attempting to do so is a Class 1 misdemeanor. Knowingly disseminating a recording is a Class I felony. This form must be submitted to the head of the law enforcement agency. The law enforcement agency shall review the request and within three business days file a petition in superior court for the issuance of an order regarding disclosure. The petition and a copy of the recording, which shall remain confidential unless the court issues an order of disclosure, shall be delivered to the senior residence superior court for the district or their designee. There is no filing fee.

The court shall conduct an in-camera review and issue an order within seven business days of the filing date of the petition. The court can order that the recording be: (a) immediately disclosed without editing/redaction; (b) immediately disclosed with editing/redaction; (c) disclosed at a later date with or without editing/redacting; or (d) not disclosed. The court may order any other conditions or restrictions on disclosure it deems appropriate. The following individuals are entitled to notice and the opportunity to be heard on disclosure:

1) the party requesting disclosure;
2) the head of the custodial law enforcement agency;
3) law enforcement personnel whose image or voice is in the portion of the recording requested and the head of that person’s employing law enforcement agency;
4) the District Attorney; and
5) the investigating law enforcement agency.

In making its decision the court shall consider: (a) whether the person requesting disclosure is authorized to receive disclosure; (b) if the recording contains information that is confidential or otherwise exempt from disclosure or release under State or federal law; (c) if disclosure would reveal information regarding a person that is highly sensitive and of a personal nature; (d) if disclosure would harm the reputation or jeopardize the safety of a person; (e) if disclosure would create a serious threat to the fair, impartial, and orderly administration of justice; and (f) if confidentiality is necessary to protect an active or inactive internal or criminal investigation or potential internal or criminal investigation. If disclosure is denied based on this last consideration, the court shall schedule a subsequent hearing no later than 20 business days after the issuance of its order to reconsider its ruling.

DISCLOSURE WHEN RECORDING DOES NOT DEPICT A DEATH OR SERIOUS BODILY INJURY
The request for disclosure of the recording must be in writing addressed to the head of the custodial law enforcement agency and provide the date and time of the recording or describe the activity with reasonable particularity to sufficiently identify the recording. The request must be by a person whose image or voice is in the recording or their personal representative, as defined above. The disclosure shall only be of those portions of the recording that are relevant to the request.

Upon receipt of the request for disclosure, the law enforcement agency shall, as promptly as possible, make disclosure or notify the requestor of its decision not to disclose. In making its decision, the law enforcement agency shall consider the same factors the court considers when considering whether to disclose a recording that depicts death or serious bodily injury. If the agency denies disclosure or fails to respond within three business days, the person or their personal representative may petition the superior court for review of the denial or failure to respond. There is no filing fee. The petition must provide the date and time of the recording or describe the activity with reasonable particularity to sufficiently identify the recording. The petition is given priority for hearing. The following individuals are entitled to notice and the opportunity to be heard on disclosure:

1) the party requesting disclosure;
2) the head of the custodial law enforcement agency;
3) law enforcement personnel whose image or voice is in the portion of the recording requested and the head of that person’s employing law enforcement agency; and
4) the District Attorney.

The court conducts an in-camera review. The court may only order disclosure if it finds the agency abused its discretion in denying the request. The court may only order disclosure of those portions of the recordings that are relevant to the request. The court cannot order release of the recording in this proceeding. The person entitled to receive disclosure shall not record or copy the recording.

RELEASE TO PERSON WHOSE IMAGE OR VOICE IS IN THE RECORDING
A person whose image or voice is in the recording, or their personal representative may petition the superior court for an order releasing the recording. There is no filing fee. The petition shall be filed on a form approved by the Administrative Office of the Courts. The petition must provide the date and time of the recording or describe the activity with reasonable particularity to sufficiently identify the recording. The petition is given priority for hearing. Notice of the petition and hearing shall be given to the head of the custodial law enforcement agency.

The court shall first determine if the petitioner is a person whose image or voice is in the recording. The court may conduct an in-camera review to make this determination, and in its discretion, allow the petitioner to be present to assist in this determination. If the petitioner is not in the recording, they have no right of appeal, but may petition for release under G.S. § 132-1.4A(g). In making its decision to release all or a portion of the recording, the court shall consider whether: (a) release is necessary to advance a compelling public interest; (b) if the recording contains information that is confidential or otherwise exempt from disclosure or release under State or federal law; (c) the petitioner is seeking evidence in the recording to determine legal issues in a current or potential court proceeding; (d) release would reveal information regarding a person that is highly sensitive and of a personal nature; (e) release would harm the reputation or jeopardize the safety of a person; (f) release would create a serious threat to the fair, impartial, and orderly administration of justice; (g) if confidentiality is necessary to protect an active or inactive internal or criminal investigation or potential internal or criminal investigation; (h) there is good cause to release all portions of the recordings; and (i) any other standards the court deems relevant. The court may only release those portions that are relevant and can order any restrictions on release it deems appropriate.

RELEASE OF RECORDINGS IN GENERAL
Any person or the custodial law enforcement agency may file a petition in superior court to release a recording. The petition must provide the date and time of the recording or describe the activity with reasonable particularity to sufficiently identify the recording. There is a $200.00 filing fee. The petition is given priority for hearing. The following individuals are entitled to notice and the opportunity to be heard on disclosure:

1) the party requesting disclosure;
2) the head of the custodial law enforcement agency;
3) law enforcement personnel whose image or voice is in the portion of the recording requested and the head of that person’s employing law enforcement agency; and
4) the District Attorney.

The court may conduct an in-camera review of the recording. In making its decision to release all or a portion of the recording, the court shall consider the same factors for release when a person’s image or voice is in the recording. The court may only release those portions that are relevant to the request and can order any restrictions on release it deems appropriate.

DISCLOSURE OR RELEASE FOR LAW ENFORCEMENT PURPOSES
The custodial law enforcement agency shall disclose or release a recording to a District Attorney to (a) review for potential criminal charges; (b) comply with discovery requests in criminal prosecution; (c) use in district court criminal proceedings; or (d) for any other law enforcement purpose. The agency may disclose or release the recording for (a) law enforcement training purposes; (b) within the agency for administrative, training or law enforcement purposes; (c) to another agency for law enforcement purposes; (d) to identify or apprehend a suspect; or (e) to locate a missing or abducted person.

RETENTION OF RECORDINGS AND AGENCY POLICIES
The recordings identified in G.S. § 132-1.4A shall be retained for at least the minimum period of retention set by the Department of Natural and Cultural Resources, Division of Archives and Records. Each agency that uses body cam or dash cam shall adopt a policy applicable to the use of these cameras.

COPY COSTS AND ATTORNEY FEES
The custodial law enforcement agency may charge a fee to offset the costs incurred in making a copy of the recording for release. This fee cannot exceed the actual costs of making the copy. Attorney fees cannot be awarded to any party in these proceedings.

STATUTES
A copy of the G.S. § 132-1.4A can be found here and a copy of the August 2021 amendment can be found here.

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