Jonathan Jones is director of the North Carolina Open Government Coalition and an instructor of media law, ethics and media writing at Elon University.
In the wake of last week’s fatal shooting of Keith Lamont Scott by Charlotte police and the controversy over release of the video, we talked with Jones about the state of the law on police video, what will soon change and the reality of how public records law works.
It’s probably fair to say most people still don’t understand the massive change that’s coming to law surrounding police video on October 1. Could you tell us how it now works and what’s about to change?
Right now all documents, films and recordings dealing with public business by any North Carolina agency or government are public record. There aren’t any specific exemptions for video but there two exemptions often cited in order not to release the video – the law enforcement and personnel exemptions.
There’s no real clarity at the moment on how far those exemptions go. They both probably apply to some police video, but they don’t cover all the video that is recorded. You’ve got a real wide variety of how local governments and agencies interpret this – some, like the city of Greensboro, absolutely believe it’s a personnel file that can’t be released without the officer’s consent. Others have not looked at it that way.
What’s changing in October is that all police video, not just body cameras but dash cameras – all police video – is being removed from the public record. If the police chief or the sheriff allows it, people who are in the video can view it. But if they don’t, people will have to go to court to see the video and they will always have to go to court to show it to the public – including newspapers and civil rights activists.
It looks like this is going to be onerous. It’s a wholesale change in how we deal with a big chunk of modern police records. And we know from the public records law that when you tell people they have to go to court to get something, fewer people do it.
Are the courts the right place for the responsibility of determining whether these things are public?
This law was shepherded by two former law enforcement officers. And you can see where they are coming from. Police chiefs didn’t want to find themselves in the position Chief Putney finds himself in down in Charlotte. They wanted to be able to say, “It’s not in my discretion to show it.”
If you put yourself in the position of the police chief, he or she is in a very tough position. If you release the video, you may be seen as not supporting your officers and not protecting them. That could harm morale.
But if you don’t release it, you run the risk of losing trust of the community.
If we’re going to take it away from the record holders, I think the courts are the logical place for the decision to be made. Every county in the state has a superior court judge who can make that decision.
But I don’t think the courts are a good place for it because it is very difficult for people to navigate these laws for themselves in court. I say that as someone who brought an open government lawsuit prior to becoming a lawyer.
Prior to moving to NC I had worked at a newspaper in Maryland and was covering a story in suburban Baltimore. It turned out a child had been molested and we were trying to get information about what had happened. I sought the records because the owner of this chain of daycares and after school programs was also the owner of a halfway house for people coming out of prison. He was letting people from his halfway house work off rent debt working at the daycare and one of these guys, who should never have been allowed to work around children, had molested one.
I had to go to court and argue my case to get the records. I lost. I didn’t know what I was doing. But I raised enough attention about it that the attorney general ordered the state agency to release the records.
Few people in any community are going to go through all of that to get the records that really should be public.
To your mind, how should it work? Who is doing it right?
A: Florida has some problems – more than 1,000 exemptions for their public records law. But when video is recorded in public, the expectation is that it’s going to be released to the public because there’s no expectation of privacy in public. When a video is recorded in your home, in a bathroom or anywhere where there would be a presumption of privacy, it’s assumed it’s going to be closed to the public.
I think that’s a much better way to handle the privacy concerns as well as the access concerns. That would cover a lot of the videos we’re talking about right now, like in Charlotte.
In the new law a line that jumped out at me is that access to a video can be denied if it might harm someone’s reputation. Isn’t that a pretty subjective criteria? Couldn’t that be read so broadly as to include harming the reputation of an officer – like one in Greensboro recently – who was found to have violated departmental standards but who has not yet faced charges?
It’s a very subjective determination. We do have, thanks to libel law, an idea of how reputations can be affected. But that’s not an easy standard to live up to.
In many ways it’s also a “get out of jail free card.” We’ve got this city councilman and he’s driving drunk and in his drunken state he says some embarrassing things that would harm his reputation. Should that be protected?
And the overwhelming majority of our officers are fantastic. But we do have officers who aren’t doing the right thing. Doesn’t the public have an interest in seeing that video?
Might we see the new law overturned? And if so, how?
A: The law, as far as I can see, is constitutional. I don’t see any challenges to this law put in place by the General Assembly being successful.
We’re going to have to live with it — and I think the folks who passed it would say give it some time. Or we’re going to have to change it if we determine it’s not working.
I think the situation in Charlotte has highlighted the potential problems with this. And this isn’t going to be the last time.
I think the courts are concerned with how they’re going to handle this, whether they’ll get a lot of requests for video and that will suck up their time.
Often it only takes one person in a community to figure out how to do something and then they start making a lot of requests. Maybe there will be that person in Charlotte who just decides to become the person who does it for that community. Maybe there will be someone in every community who does.
But I don’t think it’s a good law, I don’t think it’s a good process. I said that to the General Assembly before they passed it. I hope that when they see this doesn’t work in the way that it was intended, we’ll see a change.