By Tolulope Sogade

The widespread use of body-worn cameras (BWCs) by law enforcement agencies calls into question how those departments store and publicly release the large amounts of video footage they amass under public access laws. This Note identifies a changing landscape of public access law, with a close look at the federal Freedom of Information Act (FOIA) and its state analogues, as the result of the Capitol Insurrection and the national Movement for Black Lives. Namely, legislative enactments, DOJ programs, agency policy statements, and judicial opinions all indicate a movement toward more access and potentially more proactive disclosure of government records. This Note considers what a disclosure regime of BWC footage should look like in light of the new developments in freedom of information laws; it proposes an intermediary framework for release that balances proactive disclosures and agency responses to requests for disclosure. Three policy goals should serve as guideposts to achieve this intermediary framework: minimizing privacy violations and unnecessary oversurveillance, improving cost efficiency, and assessing the need for redistribution of resources from police to other more community-improving apparatuses. The congressional investigation of the Capitol Insurrection, the George Floyd Justice in Policing Act, and the Colorado Enhance Law Enforcement Integrity Act are exemplary, in some ways, of what disclosure should resemble. This model for approaching disclosure will be important for considering what types of information the public can access, what the public can do with that information, and how resources can be diverted or otherwise reconsidered as a part of disclosure regimes.

Columbia Law Review, 122 (6): 2022